"The Maryland Perspective" on Federal Law:
You've probably heard of the "Chicago School" of legal thought. But did you know that there is also a "Maryland perspective" on the law? In today's Baltimore Sun, the editors support the decision of Maryland Senators Mikulski and Cardin to block the judicial nomination of the current U.S. Attorney for Maryland, Rod Rosenstein, to the Fourth Circuit. The editorial offers a few reasons, but the key point seems to be that Mr. Rosenstein lacks a true "Maryland perspective" on federal law:
Thanks to Howard for the link.
Sens. Barbara A. Mikulski and Benjamin L. Cardin notified the White House as recently as September that they would oppose a Rosenstein nomination . . . because the nominee lacks the critical qualification of a long history in Maryland's legal community. A native of Philadelphia, Mr. Rosenstein was just admitted to the Maryland bar in 2002. . . .Can any one explain this "Maryland perspective" of the law? Is it genetic? Are there classes you can take to learn it? Books you can read? Can it be acquired quickly, or must it age like a fine wine during decades of residence? Or is it supposed to be a proxy for political views, with the idea being that a true Marylander isn't particularly conservative? (Oh, and yes, I'm fully aware of the history of state-by-state representation on the federal court of appeals. I think it's important, too. I just think it's amusing that the editors would take a historical practice designed to ensure equal treatment and discuss it as if it were some kind of jurisprudential school.)
[T]he Marylanders are also fighting, as they have since the beginning of Mr. Bush's term, to retain genuine Maryland representation in a seat on an appeals court regarded as among the most conservative in the nation.
This also seems a worthy cause. Federal appeals courts are playing an increasingly important role in interpreting federal and constitutional law. The Maryland perspective, in a group mostly dominated by Southern states, should be heard.
Thanks to Howard for the link.
Cowardly Hoosier, do all Marylanders share this view? And why do you think Rosenstein doesn't? And if it's just a question of state law, not federal law, why does it matter to a federal court?
Technically, isn't Maryland a southern state?
The Maryland perspective, in a group mostly dominated by Southern states, should be heard.
In other words, the Maryland perspective is, at the very least, that of a Northerner, as opposed to a Southerner. Perhaps we're getting somewhere, and perhaps this is an argument for a "diversity of views" or something to that end, rather than knee-jerk, anti-Southern rhetoric.
But then there's this:
A native of Philadelphia, Mr. Rosenstein was just admitted to the Maryland bar in 2002.
So, it's not enough to be a Northerner... something more is necessary. I'm not sure what it could be. This?
the nominee lacks the critical qualification of a long history in Maryland's legal community
I can't see how this would be a plus for a judge. "Legal communities" are often smarmy associations of lawyers, with local potentates whose hands must be kissed before one is allowed to be a judge. If the argument is that Rosenstein should be beholden to some local guild, I have to disagree. I think a judge who walks into an appellate argument not knowing if the advocate is president of the local bar association or some carpetbagger is a plus, rather than a minus.
Md is a northern state.
although they had slaves..they were part of the union
Md is a northern state.
although they had slaves..they were part of the union
1) It's in the Maryland Constitution, so, it seems to qualify as well as anything for a "Maryland perspective," whatever that is.
2) I don't know if Rosenstein shares it; the senators' objections were my only basis for thinking it unlikely that he espouses this potential "Maryland Perspective."
3) Maryland's constitution is "just a question of state law" to the degree that every other state statute and constitution is non-federal. However, there's no reason perspectives from Maryland's Constitution can't inform federal criminal jury trials or one's understanding of the 7th Amend, which explicitly references the same commonlaw tradition upon which the jury nullifaction clause of the Maryland consitution is based.
Maybe this is it... maybe the Maryland perspective is a sort of conflicted Vichy-France-like guilt over the role of one's homeland in history. That's certainly something that a native Philadelphian and a five-year member of MD's bar can't fully grasp.
On the other hand, someone from another state who moves to Maryland has to deal with things like ordering special parts for one's car to accommodate a front license plate. That sort of experience gives one a special appreciation of (disdain for?) federalism and the uniqueness of Maryland in a way that only a transplant (as opposed to a lifelong Marylander) could understand.
Maybe this is it... maybe the Maryland perspective is a sort of conflicted Vichy-France-like guilt over the role of one's homeland in history. That's certainly something that a native Philadelphian and a five-year member of MD's bar can't fully grasp.
classic
While the word "perspective" is sometimes used to mean a theoretical orientation, it is more often used to mean a subjective point of view, based on own's geographical location or place in life. The dictionary examples include: "You have to live here a few years to see local conditions in perspective," "the perspective of the displaced homemaker," and "the dismal perspective of terminally ill patients," all of which refer to points of view derived from one's position in life, rather than learned or inherited intellectual commitments. Calling for the "Maryland perspective," in this sense, to be "heard," is essentially the same thing as calling for "Maryland representation." So if one has no quarrel with state-by-state representation on the federal courts of appeals, one has no quarrel with this editorial.
It was militarily annexed by the feds during the war.
The rural Maryland accent cannot be mistaken for northern.
Unaccented sylables are given the schwa sound, Mur-uh-lund, or shortened almost out of existance, Mur-lund.
(There's also, I'm told, a unique Baltimore accent, but I don't know it.) These days, many Marylanders speak generic suburban.
The red clay soil in parts of Maryland is similar to that of Georgia, from whence the term red-neck. The main cultural divide is between the eastern shore and the western shore.
Maryland's uneasy participation in the Union during the War Between the States is perhaps best illustrated by its official state song, which remains a paean to the glories of secession. From the Maryland Kids Pages:
http://www.mdkidspage.org/StateSong.htm
The last verse is my favorite:
I hear the distant thunder-hum,
Maryland!
The Old Line's bugle, fife, and drum,
Maryland!
She is not dead, nor deaf, nor dumb-
Huzza! she spurns the Northern scum!
She breathes! she burns! she'll come! she'll come!
Maryland! My Maryland!
2) Maryland Perspective on Law:
a. No continuing ed for lawyers
b. Also no minimum pro bono
c. Contributory Negligence is a complete defense.
d. Ground Rents, for the win!
This brands JosephSlater (the winner, I agree) as not from my beloved Ballamer. After the Irsays cut and ran, locals liked to call it Indianoplace. Maybe unoriginal, but almost a shibboleth for a few years.
For the record, go back to Virginia, we don't want you.
At the same time, Baltimore's history included an ethnic-based port workers contingent, like northern cities.
Compare to Virginia, where courts will enforce the rules very closely and hand out sanctions accordingly, and there is a slight favortism for the (civil) defendant.
D.C. is FUBAR. It all depends on which judge you get. Some are absolutely horrible, some are excellent.
Just to correct a minor point here, Maryland has 2 judges on the 4th Circuit (Paul V. Niemeyer and Diana J.G. Motz), both of whom have been there for a while. What the Maryland senators are attempting to change (or "fix" if you prefer) is that Maryland used to have more than that. IIRC, the change is Jesse Helms's fault.
If Mikulski and Cardin want to restore Maryland's traditional entitlement, and think that Rosenstein's nomination shows disrespect for that tradition because of his insufficient history with that state, they should come out and say it, rather than making disingenuous arguments about Maryland's uniqueness and Rosenstein's qualifications.
Or they should just come out and say that they want liberals on the 4th Circuit and that attempt to bypass the traditional requirement of getting a local senator's blessing will be met with disingenuous editorializing.
Instead, we get this patronizing fluff.
And then, 13 years later, Baltimore will steal a 6th Circuit judge from Cleveland.
I don't read it like Orin does. You could certainly replace "The Maryland perspective" and "Southern states" with something like "the critical legal studies perspective" and "originalists" and have it make sense in a jurisprudential sort of way. But given that the comparison is between Maryland and mostly southern states, it seems to me that the editors aren't talking about the "Maryland perspective" as if it were a jurisprudential school any more than they are talking about there being a "Southern states" school. They are talking about a point of view. Someone who looks at the world from Maryland will see it differently than someone who looks from Virginia or North Carolina.
Now, on the other hand, if there is some reason to favor state representation in the legislative context (as the US certainly does, over and over again), why not in the judicial context? I'm afraid I don't see the distinction. A federalist should respect this point of view, I would think.
Why, it is the fact that in Maryland you have a Court of Appeals and a Court of Special Appeals.
They are precisely the same state-specific views and interests that justify the "the history of state-by-state representation on the federal court of appeals," and their relationship to federal statutory and constitutional law is identical to the justification for that historical practice.
The politicians represent the people of the state. The judges adjudicate based upon Federal law. Seems to me this is a very good reason not to have judges on the federal bench come from the states on which they will be adjudicating.
To be sure. But this is an argument against having state-allocated seats on federal courts of appeals, not against any specific state's request for its traditional allotment. Indeed, it is perfectly justifiable for a state (or editorial board therein) to oppose the general practice on principle, but insist that as long as it is in place, their state get its seats -- lest its "perspective" be ignored.
(This is not to say that the Baltimore Sun in fact opposes the general practice of state-allocated seats -- only that its argument does not depend on that general practice being justified).
Supporters have praised Rosenstein's clear legal thinking and collegial style.
"I think he is a phenomenal nominee," said Montgomery County State's Attorney John McCarthy, who lauded Rosenstein's efforts to reach out to local prosecutors' offices. "I think he has done an extraordinarily fine job as U.S. attorney, uniformly respected by prosecutors and defense attorneys alike."
Those familiar with his work called his nomination a natural evolution for a highly accomplished public servant despite the political hurdles he faces.
"He's highly intelligent, very experienced and a guy who knows the appeals court. He's a great oral advocate," said Baltimore attorney Cy Smith, a past president of the Maryland Federal Bar Association.
The only major detractors were Maryland's senators.
It has nothing to do with the disqualification of a candidate for Maryland's AG job, as that was ruled on by the Maryland court of special appeals.
And it has nothing to do with recently concluded prosecution of State Sen. Bromwell. The important bit of information was this:
Rosenstein, an affable but intensely driven Harvard-trained lawyer, rose quickly in the Justice Department -- most notably working for independent counsel Kenneth W. Starr -- before being named the U.S. attorney for Maryland two years ago. His nomination was backed by Mikulski and now-retired Sen. Paul S. Sarbanes.
This is payback for his working for Starr. My guess is that 2 years ago there was nothing in Rosenstein's record to object to. However, now with Sen Clinton running for the presidency, Maryland's senators will not support his promotion.
That he's been excellent prosecutor and shouldn't be moved or that he fails to reprsent the Maryland perspective are fig leafs. This is pure partisan politics that the Sun is supporting. Maryland perspective simply puts a respectable veneer on the base motivation.
To me it's more like "Baw-ti-more," no "l." Cold = Code, hold = hoed, with that strange "o" that sounds a lot like...a Philly accent, actually.
Is that what really motivates the Baltimore Sun? I doubt it. Maryland is a Democratic state in a forced marriage with a bunch of more conservative southern states. The Senators (and the Sun) want the liberal Maryland perspective on the court. But the fact that their motives are not pure doesn't obscure the fact that the historical antecedents for geogrphic diversity on the court have a relatively sound pedigree.
Actually, I meant to agree with you. I have a very low expectation of news editors when it comes to these subjects, as do you probably.
As an aside: are there any other states whose overall political persuasion is as out of step with the Circuit in which it sits as Maryland's is with the Fourth?
Even at the federal circuit court level, there is a personal component of the relationship between the bench and the bar. Lawyers and judges have a reputation, good or bad, among fellow bar members. Each state's bench and bar (or even districts within a state) have, in practice, different approaches to handling technicalities, how strict or loose they are with certain procedural issues, etc. There may not be a Maryland perspective to the law itself, but there is almost certainly a Maryland perspective to the practice of law.
Sen. Clinton herself has, however, never let this go, see, e.g., her Senate votes against Chertoff and Viet Dinh
No, no, no! Thirteen years later a new appellate judgeship will be created for Baltimore, which will happen to be filled by a judge with the exact same jurisprudence as a particular 6th Circuit judge. That 6th circuit fellow will take a three year break from the bench and have a totally different personality when he returns.
(Technically the Cleveland Browns never moved. They just stopped playing for three years and gave all of their players, coaches, et.c to a new franchise in Baltimore.]
As I recall, the first is "The tyrant's foot is on thy shore," the tyrant in question being A. Lincoln.
I once had to find my way in Bommer, asked three bus drivers, and finally (I am serious) was reduced to sign language, holding up three fingers and asking if he meant three blocks. I finally deduced that "Chaawsh Street" meant Charles Street.
So, if they want a long-time Maryland resident, given them Alex Azar. Gold-plated resume and he grew up there. The only objection that could be made is that he is conservative (in the simplistic left-right sense of American politics) and that is what the current hubbub is about.
I can see that, but in practice I don't think the argument does the work it needs to do. Each panel has only three judges, while most circuits have around 5 states; given that, the chances that there is a judge from that particular state is relatively low. Plus, the chances that the judge will have special expertise from his or her period in practice in that state that is relevant to the issue before the court that many years later is really quite low. Finally, each circuit court judge in the circuit will become roughly familiar with the law from each of the states in that circuit over time, regardless of where they came from. There are certainly helpful points in terms of political accountability -- when the First Circuit ruled on an important question of the legal status of Puerto Rico, it helps to have Judge Torruela writing the opinion -- but I don't know how often expertise can really make a difference. Interesting argument, though.
I have to second Pat HMV's 6:47pm comment. I, too, am somewhat confused as to why do you think that state-by-state representation on federal court of appeals is a good thing? In light of your 5:54pm comment it seems that you don't see particular benefits of this practice.
Thanks.
In my opinion, state-by-state representation in federal appeals courts is important because the laws are not interpreted by computers. Laws are largely reflections of society's policy choices. They are often vague and leave some room for interpretation (the recent Supreme Court case on pay discrimination comes to mind). There is therefore, a room where reasonable people can disagree. The disagreements often stem from different perspectives that judges have.
Imagine there is a law that can be reasonably interpreted in two ways; let's say, outcome A and outcome B. If Maryland's public policy favors outcome A, while Virginia's public policy favors outcome B, it becomes important from what state is the judge deciding between the two reasonable outcomes.
I think state by state representation is important because it furthers essential comity interests between the federal and state systems. State representation ensures a sense of buy-in; it makes the federal system more of an "us" and less of a "them." This is a very important concern. But the point of my post is that this important concern is quite distinct from any "perspective" that Judges bring to the job of deciding cases.
Another Maryland fact, during prohibition our gov prohibited state employees from enforcing prohibition - hence we are the "Free State".
It is true that most Virginians hate Maryland and vice-versa. Though I do like Baltimore quite a bit.
For most judges they will favor their home state in a case. No home state judges means on economic matters where one state wins and one loses-- you are going to lose.
If you don't like the modern views expressed above, perhaps Ms. Mikulski is suggesting the historical perspective that some Quaker(-sympathizing) Pennsylvanian couldn't possibly understand the critical yet subtle influence of the (Catholic) church on Maryland jurisprudence.
Fixed that for you.
Not to beat a dead horse, but this explanation begs the question. Why does state-by-state representation make the federal court system "more of an 'us' and less of a 'them'"? Presumably because there is thought to be a relevant difference between "us" and "them" with respect to the interpretation of federal law.
You wrote, in response to my last comment, that "the separation of powers that is the central design of the U.S. Constitution" stands against the notion of having judges picked from particular states to interpret the Constitution.
Thus, you claim, apparently, that the US Constitution's "separation of powers" mandates no state-by-state representation of judges on federal courts.
What on earth are you referring to?? Where in the Constitution is it prohibited that judges should be picked on a state-by-state basis to promote fair representation? I must have missed that one-- please point it out to me. There is no such prohibition -- and we are free to do so.
Next,you claim that "Judges just interpret the law, and they aren't free to infuse their rulings with the preferences of the voters from their home states."
Again, what on earth are you talking about? Are you aware of some rule, statute or case that prohibits a judge from using her life experience in construing cases? Are you claiming that some Constitutional provision requires a judge to put blinders on with regard to her background? Suffice it to say that virtually no one agrees with this. The diversity of experience in judges, after all, is why federal court nominees are so different in different administrations. If judges "aren't free to infuse" rulings, as you claim, with "preferences," then the nomination of such judges should be uncontentious by the various parties in politics. That, of course, is not the case.
Finally, you claim that "A judge called on to interpret ERISA or the Federal Rules of Civil Procedure is supposed to interpret ERISA/the Federal Rules of Civil Procedure, not what the people of any particular state would want these laws to be." This is a misreading of my claim. No one argues that judges willingly distort the law -- but the fact of the matter is that different people decide the same issues differently. Justices Scalia and Stevens are both supposed to decide the same matter under ERISA, for example, but they come out quite differently more often than not.
Now, perhaps you claim that state law viewpoints are empirically irrelevant and that a Maryland person judges the same as someone from Illinois. I would like to see the data supporting that thesis. On the other hand, I think it likely that people from different states DO decide different issues differently. I think that different viewpoint is entitled to as much respect (if not more) in nominations than the difference between, say, a Federalist Society member and someone who is a member of the ACLU. Simply because you are unaware of a principled distinction between these persons does not mean there is one.
It thus seems quite logical, as a matter of history and structure, to have each state represented on federal courts of appeal, and, thus, to have that state's history, experience and interests represented on those courts.
And here you are moaning about two Maryland Senators.