Confirmation of Claude Allen

Recipient: Senators Hatch and Leahy

The Honorable Orrin G. Hatch
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
152 Dirksen Senate Office Building
Washington, D.C. 20510

Dear Senators Hatch and Leahy:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the confirmation of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit.

Mr. Allen’s nomination is highly troubling for several reasons. First, as reflected in the American Bar Association’s (ABA) evaluation, Mr. Allen’s lack of legal experience raises serious doubts about his ability to assume the responsibilities of a circuit court judge. Since his law school graduation 13 years ago, Mr. Allen has practiced law for only seven years – five years short of the ABA Standing Committee’s 12-year requirement. As a result, though a majority of the ABA Standing Committee rated Mr. Allen as qualified, several members of the Committee rated him as unqualified.

Given Mr. Allen’s minimal legal experience, LCCR and others are forced to examine his tenure as Virginia’s Secretary of Health and Human Resources, and his role as campaign spokesperson and staff for Senator Jesse Helms, to determine how he might carry out his responsibilities if confirmed to the Fourth Circuit. A review of Allen’s record provides LCCR with little comfort. Repeatedly, Mr. Allen disregarded the law in an effort to advance an agenda driven by personal ideology. For example, while serving as Virginia’s senior health official, Allen flaunted his opposition to the Commonwealth’s Health Care Decisions Act and ignored a Prince William Circuit Court decision while denying the family of Hugh Finn the right to terminate Mr. Finn’s life support. In response to Mr. Allen’s actions during that period, Michelle Finn, Mr. Finn’s wife and legal guardian, wrote, “Secretary Allen was a core participant in a concerted effort to impose his personal agenda and beliefs over the legal and moral rights to which my husband was entitled.”

LCCR is especially troubled by Claude Allen’s record on civil rights. In his role as a campaign spokesperson for Senator Helms in 1984, Allen expressed views antithetical to basic civil rights protections. In that capacity, Allen stated support for Helms’ position against extending the Voting Rights Act. In addition, rather than denouncing Helms’ past efforts to prevent integration, Allen suggested that he was not troubled by it. Allen stated that he believed most African Americans agreed with Helms’ opposition to school busing for integration.

During the 1984 Senate campaign, Allen also defended a Helms fundraising letter that the North Carolina Association of Black Lawyers publicly criticized as racist:

“[The fundraising letter] appears, without some explanation to the contrary, to pander to the racist emotions of people and to inject racial considerations into the United States Senatorial campaign. For years, the North Carolina Association of Black Lawyers and other groups have attempted to eradicate racial prejudices and biases in this state. . . . It would be a slap in the face of all such people and to the entire black community to now allow or expect any political candidate in this day to use racial codes to enflame their political supporters.”

In fact, the 1984 campaign was marked by so much racial hostility by Helms that a three-judge panel actually cited the 1984 Senate campaign, in a North Carolina redistricting case, as an example of how racism continued to flourish in North Carolina politics. Gingles v. Edmisten, 590 F. Supp. 345, 364 (E.D.N.C. 1984).

LCCR is also concerned that the administration nominated Mr. Allen of Virginia to a seat previously held by Maryland jurist Francis D. Murnaghan, Jr. The replacement of a judge from a different state occurs very rarely. In the Fourth Circuit, this has not happened in thirty-two years, when Maryland lost the seat. South Carolina, still greatly overrepresented on the circuit, gained the seat. Mr. Allen’s nomination represents a geographic reallocation in the Fourth Circuit since the seat currently in question was traditionally allocated to Maryland.

In order to fairly uphold the proportional representation of Maryland in the Fourth Circuit, Maryland should be allocated three of the circuit’s fifteen authorized seats. Such an allocation would bring geographic balance to the Fourth Circuit by giving Maryland twenty percent of the judicial positions – a percentage in keeping with Maryland’s population in the circuit. Currently, Virginia holds one-third of the seats on the court, but has only one-fourth the population of the Fourth Circuit. To accomplish the balance needed, in June 2003 the Maryland Bar wrote a letter to the White House, requesting that President Bush appoint a Marylander to the vacant seat. In July, both of Maryland’s senators, Paul Sarbanes and Barbara Mikulski, wrote to the White House opposing Claude Allen’s nomination because it shifts a seat from Maryland.

LCCR is particularly perplexed because Mr. Allen’s nomination violates the standard set forth by the administration. The administration stated that it would seek geographic balance among states in a circuit so that the number of sitting judges would correspond to each State’s percentage of the overall population of the circuit. In a memorandum sent to Maryland Senators Barbara Mikulski and Paul Sarbanes, White House Counsel Alberto Gonzales said the current allocation of the Fourth Circuit is “significantly out of balance” and that President Bush intends to nominate individuals to Fourth Circuit vacancies “in a manner that will bring the circuit closer to geographic balance.”

For these reasons, LCCR opposes the confirmation of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit. Mr. Allen’s nomination raises serious substantive concerns, and in addition, it is only fair that the person nominated to this Fourth Circuit seat be strongly rooted in the Maryland legal and civic communities.

We hope you will take our concerns into consideration. If you have any questions regarding this matter, please contact Nancy Zirkin, LCCR Deputy Director/Director of Public Policy at (202) 263-2880. Thank you for your consideration.

Sincerely,

Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director

cc: Senate Judiciary Committee