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"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:
  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. . . .
  [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.
  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.)

  Thanks to Howard for the link.
Cowardly Hoosier (mail):
Maryland is one of only two states (Indiana is the other) that explicitly permit jury nullification and jury instructions to that effect. Seems like a fairly unique perspective unlikely to be shared by Mr. Rosenstein.
11.19.2007 3:02pm
guest:
Could this in any way relate to--or even be payback for--the 2006 state attorney general's race in MD, where a Democratic candidate was disqualified because he didn't meet the state constitutional qualification for length of legal practice in the state?
11.19.2007 3:02pm
The Emperor (www):
I think it involves crabcakes.
11.19.2007 3:13pm
alias:
The Emperor beat me to it...
11.19.2007 3:18pm
OrinKerr:
Maryland is one of only two states (Indiana is the other) that explicitly permit jury nullification and jury instructions to that effect. Seems like a fairly unique perspective unlikely to be shared by Mr. Rosenstein.

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?
11.19.2007 3:19pm
Erick:
The Maryland perspective, in a group mostly dominated by Southern states, should be heard.

Technically, isn't Maryland a southern state?
11.19.2007 3:19pm
Prufrock765 (mail):
For "Maryland", substitute "African american", or "feminine" and ask the same rhetorical questions again.
11.19.2007 3:22pm
alias:
Taking the question seriously for a moment (assuming that the Baltimore Sun editors are writing in good faith and actually mean something by a "Maryland perspective"), though, this line may give a clue about what they're getting at:

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.
11.19.2007 3:29pm
George Weiss (mail):
erik-

Md is a northern state.

although they had slaves..they were part of the union
11.19.2007 3:30pm
George Weiss (mail):
erick-

Md is a northern state.

although they had slaves..they were part of the union
11.19.2007 3:31pm
CJColucci:
What's hard, or even interesting, about this? The 4th Circuit apparently has been without a Maryland representative for some time. Maryland Senators want something done about this, and seating a merely technical Marylander isn't good enough for them. And why should it be? Would anyone be puzzled if North Carolina Senators wanted a real Tarheel for a vacancy rather than some carpetbagger?
11.19.2007 3:38pm
Cowardly Hoosier:
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?

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.
11.19.2007 3:39pm
alias:
although they had slaves..they were part of the union

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.
11.19.2007 3:41pm
JosephSlater (mail):
Ah, even if they got a Marylander, he might pack up and leave in the middle of the night to go sit on the 7th Circuit in Indianpolis.
11.19.2007 3:41pm
alias:
JosephSlater wins the thread.
11.19.2007 3:43pm
JosephSlater (mail):
Indianapolis.
11.19.2007 3:43pm
TRE:
Maryland is a southern state below the mason dixon line, had slaves but did not secede, although they did rip up their railroad lines
11.19.2007 3:44pm
George Weiss (mail):
although they had slaves..they were part of the union

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
11.19.2007 3:46pm
Gaius Marius:
Once again Senator Mikulski illustrates how she detracts from the sum knowledge of mankind every time she opens her mouth.
11.19.2007 3:51pm
AF:
This post appears to be based on a misinterpretation of the word "perspective." Nothing else in the editorial even vaguely suggests that the authors are referring to a "jurisprudential school" rather than to political representation. On the contrary, the editorial refers very clearly to "Maryland representation," which Orin admits is a "important" concern for Marylanders to have.

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.
11.19.2007 3:53pm
arbitraryaardvark (mail) (www):
Maryland is a mid-Atlantic state, south of the Mason-Dixon.
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.
11.19.2007 3:54pm
CarolynElefant (mail) (www):
As far as I know, the only way to gain admission to the Maryland Bar is to take the Maryland practitioner's exam, which tests lawyers on Maryland's Rules of Practice and Procedure. Thus, lawyers who gain admission to the Maryland Bar arguably know more about Maryland law than those who gain admission to a state bar via reciprocity.
11.19.2007 3:55pm
Preferred Customer:

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!
11.19.2007 3:58pm
PatHMV (mail) (www):
I agree with AF. Politically, the seat "belongs" to Maryland. If one agrees with the historical compromises which have been reached over time which have more-or-less divvied up the various Circuit seats among the states in that Circuit, then it is entirely appropriate for Maryland to want a "real" Marylander in the spot, not a recent immigrant with little real experience with the members of the Maryland bar.
11.19.2007 3:58pm
some snark:
I find it hard to take "carpetbagger" concerns seriously for something as piddly as a federal judgeship. The country seems likely to elect as President a New York Senator who moved into New York, what, the night before the filing deadline?
11.19.2007 3:58pm
Gump:
1) I second JosephSlater's winning this thread.

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!
11.19.2007 3:59pm
Cornellian (mail):
How many Maryland state law questions is the guy realistically going to have to adjudicate as a 4th Circuit judge?
11.19.2007 4:01pm
Scott Scheule (mail) (www):
For the record, I'm a member of the Maryland Bar, and I know nothing of Maryland or its laws, and I also hate the state very much.
11.19.2007 4:01pm
Marco:

Indianapolis


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.
11.19.2007 4:03pm
Gump:
Scott Scheule

For the record, go back to Virginia, we don't want you.
11.19.2007 4:04pm
PLR:
PatHMV is correct, there a long history of allocating seats on Circuit Courts of Appeal to specific states, and their currently serving Senators. Nothing new here.
11.19.2007 4:06pm
lived near murlin (mail):
Maryland is best described as a border state. It was part of the Union, but had slaves and its state song had the phrase "despot's heel," referring to Abe Lincoln and the Union Army. When Lee marched through Maryland, he found many supporters there.

At the same time, Baltimore's history included an ethnic-based port workers contingent, like northern cities.
11.19.2007 4:12pm
Mark Field (mail):
IIRC, much of the demand to split the 9th Circuit comes from those who claim it's "dominated" by CA. Isn't that pretty much the mirror image of the MD claim? Seems to me, people in ID, say, just want an "ID perspective" on the 9th Circuit, so they favor splitting it. What is at all new here?
11.19.2007 4:14pm
OrinKerr:
To those who say there is "nothing new" here (PLR, CColucci), I think you're missing the point of the post. Indeed, the conclusion of the post was designed to avoid this misunderstanding:
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.
Of course, "amusing" is in the eyes of the beholder.
11.19.2007 4:23pm
Eli Rabett (www):
Yes, there really is a distinct Bawlmer accent
11.19.2007 4:24pm
NaG (mail):
I think there is something to the argument that the "Maryland perspective" here meant little more than "someone who hails from Maryland" rather than "someone who will advance the Maryland view of the law." However, having practiced in Maryland, D.C. and Virginia, I will say that Maryland's courts approach the law differently from the other jurisdictions. For one, Maryland state judges hardly ever sanction a party for missing deadlines or failing to provide discovery as directed. Maryland rules of litigation are loosely enforced, at best. And there is a faint but palpable favortism toward the plaintiff.

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.
11.19.2007 4:24pm
Justin_F (mail):
Perhaps it is blowback for his prosecution of Democratic State Senator Thomas Bromwell, who just got sentenced to 7 years last week. But I have no idea
11.19.2007 4:28pm
CJColucci:
[Deleted by OK on civility grounds. CJ, if my blog posts don't meet your high standards, you are certainly welcome not to read them.]
11.19.2007 4:31pm
alias:
CjColucci writes: What's hard, or even interesting, about this? The 4th Circuit apparently has been without a Maryland representative for some time. Maryland Senators want something done about this, and seating a merely technical Marylander isn't good enough for them. And why should it be? Would anyone be puzzled if North Carolina Senators wanted a real Tarheel for a vacancy rather than some carpetbagger?

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.
11.19.2007 4:44pm
CJColucci:
Wow. My first "civility" deletion -- for suggesting that whatever the point of your post was you had failed to communicate it. My bad.
11.19.2007 4:56pm
AF:
I think the point a number of posters are trying to make is that the editorial does not, in fact, "take a historical practice designed to ensure equal treatment and discuss it as if it were some kind of jurisprudential school," nor is it "disingenuous." That reading of the editorial is without basis in its text. The editorial is quite clear that it wants Marylanders on the court to represent the views and interests (ie, the "perspective") of Maryland.
11.19.2007 4:58pm
NaG (mail):
And the recognition of a Maryland perspective, as differentiated from a Virginian perspective or a Floridian perspective, is precisely why we have an electoral college instead of majority voting for the presidency. Though I suppose Sens. Mikulski and Cardin may have that point lost on them in a different context.
11.19.2007 5:07pm
U.Va. 3L:
Ah, even if they got a Marylander, he might pack up and leave in the middle of the night to go sit on the 7th Circuit in Indianpolis.

And then, 13 years later, Baltimore will steal a 6th Circuit judge from Cleveland.
11.19.2007 5:11pm
alias:
CJColucci, afai can tell, your comment is still there...
11.19.2007 5:12pm
alias:
nevermind... now I see it.
11.19.2007 5:12pm
OrinKerr:
AF writes:
I think the point a number of posters are trying to make is that the editorial does not, in fact, "take a historical practice designed to ensure equal treatment and discuss it as if it were some kind of jurisprudential school," nor is it "disingenuous." That reading of the editorial is without basis in its text. The editorial is quite clear that it wants Marylanders on the court to represent the views and interests (ie, the "perspective") of Maryland.
What are the "views of Maryland" as they relate to federal statutory and constitutional law? How do the "interests of Maryland" relate to federal statutory and constitutional law?
11.19.2007 5:14pm
DJR:
"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."

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.
11.19.2007 5:15pm
Davide:
Seems to me that if there is no "Maryland perspective," then there's little reason to have House members of Senators from Maryland either. Why not just have everyone elected straight from the populace?

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.
11.19.2007 5:17pm
A. Nonymous (mail):
Shame, shame! How could you NOT know what makes Maryland law so special?

Why, it is the fact that in Maryland you have a Court of Appeals and a Court of Special Appeals.
11.19.2007 5:20pm
AF:
What are the "views of Maryland" as they relate to federal statutory and constitutional law? How do the "interests of Maryland" relate to federal statutory and constitutional law?

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.
11.19.2007 5:31pm
davod (mail):
"Seems to me that if there is no "Maryland perspective," then there's little reason to have House members of Senators from Maryland either. Why not just have everyone elected straight from the populace?"

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.
11.19.2007 5:32pm
Justin (mail):
Joseph, that's okay. They'll just steal someone from the 6th Circuit to compensate.
11.19.2007 5:43pm
AF:
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).
11.19.2007 5:44pm
Soccer Dad (mail) (www):
The news article in the Sun about the nomination seemed to be pretty positive about Rosenstein.
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.
11.19.2007 5:53pm
OrinKerr:
Davide writes:
Seems to me that if there is no "Maryland perspective," then there's little reason to have House members of Senators from Maryland either. Why not just have everyone elected straight from the populace?

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.
The distinction is the separation of powers that is the central design of the U.S. Constitution. Legislatures make the law, and they are free to make the law pretty much however they like it. A "Maryland perspective" is the normative policy preferences taken as a whole of Maryland voters. That's not only okay, that's how the democratic system is supposed to work. Judges just interpret the law, and they aren't free to infuse their rulings with the preferences of the voters from their home states. 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.
11.19.2007 5:54pm
Tony Tutins (mail):
Maryland is a Democratic, liberal state while Virginia, etc. are Republican, conservative states. The Potomac forms a sharp gun rights divide. Although, no Marylanders were involved in the decision in Love v. Pepersack, which held that the Second Amendment did not protect an absolute individual right to own a firearm.
11.19.2007 6:13pm
Anonymouseducator (mail) (www):

Yes, there really is a distinct Bawlmer accent


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.
11.19.2007 6:13pm
One Man's View:
OK, Orin, I will bite, since I suspect you already know the answer. Maryland feels it is entitled to a specific number of seats on the 4th Circuit. There are a number of reasons for this entitlement -- it may feel this way as a matter of history which may or may not be persuasive. But Maryland also has at least two reasonable grounds for this belief of entitlement. First, Federal courts may be called upon to interpret Maryland law in diversity cases. It is not unreasonable for a State to want lawyers who understand whatever unique aspects of Maryland law there are to be on the court rendering such interpretations. Second, there is the underlying justification for diversity jurisdiction in the first place -- the belief that the Federal courts would be venues where an out of state litigant got "home cooking" in the same way as in State courts. To the extent you think that is valid, it is equally valid to want the state-representation on the Federal courts to be mixed. Personally, I think that the diversity rationale has weakened over time, but it isn't totally gone even today.

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.
11.19.2007 6:16pm
PLR:
Quoting OK:
To those who say there is "nothing new" here (PLR, CColucci), I think you're missing the point of the post.

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.
11.19.2007 6:33pm
Name:
One Man, I agree.

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?
11.19.2007 6:37pm
PatHMV (mail) (www):
Orin, your 5:54pm comment seems at odd with your concluding paragraph at the end of the original post. Like AF, I just don't see the paper trying to introduce "Maryland Perspective" as some new school of legal thought. Are you saying that the "historical practice designed to insure equal treatment" is a bad thing? Why else would "equal treatment" be necessary, unless one assumes that each state may have some separate interests which would give it a need for "representation" on the court to insure that equal treatment.

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.
11.19.2007 6:47pm
Nelson Lund (mail):
I'm familiar with what's called the Chicago School in economics, and I think you can say there's a Chicago School in antitrust. But I hadn't heard of something known more generally as "the 'Chicago School' of legal thought."
11.19.2007 6:54pm
Pliny, the Elder (mail):
I agree with Soccer Dad
Sen. Clinton herself has, however, never let this go, see, e.g., her Senate votes against Chertoff and Viet Dinh
11.19.2007 7:25pm
KeithK (mail):

Ah, even if they got a Marylander, he might pack up and leave in the middle of the night to go sit on the 7th Circuit in Indianpolis.

And then, 13 years later, Baltimore will steal a 6th Circuit judge from Cleveland.

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.]
11.19.2007 7:35pm
UMB 3L (mail):
Apart from the politicking going on here, Gump is right to point out that Maryland law has some serious love for the common law in strangely conservative ways (e.g. ground rent and [my personal fave] the complete defense of contributory negligence). But other than being conservative in property and tort law, this is all about a broader strategy of shifting the ideology of the 4th Circuit. Sens. Mikulski and Cardin are holding firm until the next President, and there's a good chance that Virginia could, too, as they could have two Democratic Senators come 2009.
11.19.2007 7:46pm
Dave Hardy (mail) (www):
The last verse is my favorite:

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.
11.19.2007 8:40pm
sosueme:
The hold is just an attempt to run out the clock until 2009.

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.
11.19.2007 8:43pm
ReaderY:
A federal court sitting in diversity has to delve into the innards of state law under Erie. It's certainly an argument, separate from fairness, representation, and other general issues, that having an expert in the law of each state involved sitting on the court helps.
11.19.2007 8:52pm
OrinKerr:
ReaderY,

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.
11.19.2007 9:30pm
Tugh (mail):
Orin,

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.
11.19.2007 10:52pm
Prosecutorial Indiscretion:
He may have been admitted to their bar in 2002, but Rod was an AUSA in Maryland from 1997 through 2001. His prior service belies the meme that he's some carpetbagger who suddenly appeared in Maryland when he was appointed U.S. Attorney. If there is a "Maryland perspective" with respect to federal courts, the man's been exposed to it for ten years.
11.20.2007 12:23am
OrinKerr:
PatHMV, Tugh,

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.
11.20.2007 12:40am
PatsyMc (mail):
Here is an important Maryland legal quirk, every citizen of the State is a member of the unofficial militia of Maryland. Maryland has a highly organized militia, the Maryland Defense Force (MDDF) that is a volunteer organization of lawyers, doctors, engineers, and a cavalry, that stands ready, willing and able to protect Maryland citizens in case of emergency (we all saw the fed response to Katrina). The lawyers provide legal assistance to National Guard members called that have been activated. It hasn't been argued yet, but I think that the militia statute puts all Marylanders under the protection of the Second Amendment. And we all hate Virginia - we are planning operation Maralord, the invasion and annexation of Virginia. We are still burned that we gave the land for DC and VA reclaimed their grant.
Another Maryland fact, during prohibition our gov prohibited state employees from enforcing prohibition - hence we are the "Free State".
11.20.2007 7:52am
NaG (mail):
PatsyMc: Come and get us, crabcake!

It is true that most Virginians hate Maryland and vice-versa. Though I do like Baltimore quite a bit.
11.20.2007 8:16am
PatsyMc (mail):
Hello NaG - I'm meet you with oysters and crabcakes at forty paces on the dueling fields of Bladensburg (where DC residents used to fight b/c dueling was legal in MD but illegal in DC)
11.20.2007 8:27am
Happyshooter:
It is fun being funny, but let's be honest.

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.
11.20.2007 8:33am
Aultimer:
OK -

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.

Eli Rabett:
Yes, there really is a distinct Bawlmer accent, hon. Philly-boy'd be a fish outta wooder.

Fixed that for you.
11.20.2007 10:17am
AF:
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."

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.
11.20.2007 11:15am
Bpbatista (mail):
The "Maryland Perspective" on the law is just another aspect of "diversity." All correct thinking people know that there is a black perspective, hispanic perspective, gay/lesbian/bi-sexual perspective, etc. on the law. So why not a "Maryland Perspective?"
11.20.2007 11:25am
Spragins (mail):
The Maryland Attorney General's Office has published an opinion concluding that the Second Amendment does not apply to the states, and in any event does not protect an individual right to keep and bear arms. See http://www.oag.state.md.us/Opinions/1994/79OAG206.pdf. I suppose that is, unfortunately, part of the "Maryland perspective" on federal laws.
11.20.2007 11:48am
Davide:
Orin,

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.
11.20.2007 1:17pm
Davide:
This is why, Orin, for example, it is well-known that judges in certain state courts are more plaintiff-friendly, and others more defendant-friendly. Even if the law is the same technically is these jurisdictions (e.g. the standard on a motion to dismiss) few would argue that judges in certain states courts in Illinois view plaintiffs' claims as hostilely, as, say, state court judges in Florida.
11.20.2007 1:20pm
Davide:
Last point: It was the long-standing practice, in fact, for federal courts, that a new federal court nominee would come from the same state as the departing jurist. This was true as a matter of practice and senatorial courtesy.

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.
11.20.2007 1:38pm
Duncan Frissell (mail):
I'm sure that Rod Rosenstein matches the philosophical underpinnings of the Free State.
11.20.2007 3:41pm
Rich Rostrom (mail):
Actually, when Lee marched through Maryland, he passed through Unionist western Maryland. One Rebel officer later described Frederick as "a miserable Union hole", where all the inhabitants were hostile. When Union troops arrived a few days later, they were greeted with U.S. flags and gifts of food and drink. The pro-Southern people in Maryland were in the eastern part of the state: Baltimore and the Eastern Shore.
11.20.2007 6:04pm
Eli Rabett (www):
Eli is going to so enjoy the coming election season when all those folk from the good ol heartland red states proclaim how the Utah,Georgia,SouthDakota (why is S. Dak still a state, they don't have enough people to fill a phone booth and yes I know about Vermont and at least they have good ice cream or used to),SouthCarolina perspective that they bring is so important in fighting those liberal judges that the rest of us should send their states more money.

And here you are moaning about two Maryland Senators.
11.21.2007 11:48am