U.S. Judiciary: Maryland Senators Have Right to Reject Nomination of Rosenstein

A federal judge has lifetime tenure. As a result, the selection process for judges cannot be treated as a mere prerogative of the President. Regardless, this is the consistent view of The Washington Post’s editorial board.

A Washington Post editorial seems to argue that nominee Rod Rosenstein should become a Fourth Circuit judge just because President George Bush nominated him.

Yet Maryland Democratic Sens. Barbara A. Mikulski and Benjamin L. Cardin are portraying Mr. Rosenstein as a carpetbagger. The senators criticized President Bush’s nomination Nov. 15 of Mr. Rosenstein to the U.S. Court of Appeals for the 4th Circuit because they claim Mr. Rosenstein lacks “a lengthy history of state legal experience in Maryland and strong Maryland roots.” The senators also argue that Mr. Rosenstein is doing such a good job as U.S. attorney that he should be kept in that post rather than moved to the court.

Neither of these arguments is persuasive. Federal appeals court judges rule almost exclusively on the basis of federal law — not state and local law — so experience in the local bar or local courts would have little, if any, impact on their ability to perform the job. And punishing Mr. Rosenstein by denying him a judgeship because of an outstanding performance as U.S. attorney is perverse. In fact, the office has stabilized under Mr. Rosenstein and counts among its ranks senior lawyers who would be capable of taking charge.

The editorial notes that the two Maryland senators informed Bush of their objection to Mr. Rosenstein before Bush submitted his name to the Senate.

Ms. Mikulski and Mr. Cardin signaled early on their opposition to a Rosenstein nomination, a message that Mr. Bush chose to ignore.

As I have stated in a previous post, the simple fact of being nominated for a judge position should not guarantee confirmation.

Judicial positions are for a lifetime, thus the Senate should conduct exacting scrutiny of each nominee. The Senate should exercise its power to reject nominations (even stalling nominations), if necessary.

The President and Senate, to ensure a smooth judicial nomination process, should agree to acceptable nominees before nominations are submitted for the Senate’s consideration.