Even compared to other failed judicial nominees, Claude Allen’s story is uncommonly tragic. His nomination to the U.S. Court of Appeals for the Fourth Circuit was doomed by several familiar factors—a history of offensive statements, a record of extreme social conservatism, and a lack of traditional legal experience— and an unusual one: He was caught in the middle of a spat between Maryland Democrats and Virginia Republicans over the nominee’s state of origin. His nomination stalled for two years, showed no signs of movement, and was withdrawn at his request.
And then the shoplifting charges hit.
Ultimately, Claude Allen’s unsuccessful judicial nomination will be a mere footnote in his life story; overtaken by other events, including his arrest and conviction on multiple charges of shoplifting, followed by a horrific family tragedy involving his son. And for lawyers who sometimes lose perspective, it is a bracing reminder that there is more to life than the law.
In 2003, President Bush nominated Allen to Fourth Circuit, at the time widely regarded as the most conservative federal appeals court in the country. (Things have changed.) Allen had limited legal experience but a sterling resume. A graduate of Duke Law School and a protégé of Clarence Thomas, Allen served as Secretary of Health and Human Resources under Virginia Governor James Gilmore, then joined the George W. Bush Administration in 2001 as Deputy Secretary of the Department of Health and Human Services.
Yet although the Republicans controlled the Senate, Allen’s nomination clung to life support from the start, for several reasons—some unique to him, others not; some his doing, others not. In particular, (1) he had made anti-LGBT and anti-woman comments earlier in his career, and had defended anti-civil-rights positions held by his then-boss, Senator Jesse Helms; (2) his record in government revealed extreme social conservatism, punctuated by controversial, high-profile decisions and bipartisan questions about his temperament; (3) he had little traditional legal or judicial experience, which reinforced concerns that President Bush nominated him to advance a socially conservative agenda; and (4) he was caught in the middle of a feud battle between Democratic Senators from Maryland (home of the judge whom Allen would be replacing) and Republican Senators from Virginia (home of Allen).
Perhaps Allen could have surmounted one or another of these obstacles. But the combination was too much.
First, Allen had made anti-LGBT and anti-woman comments while working as press secretary for Senator Jesse Helms in the early 1980s. In 1984, Allen attacked Helms’s opponent, North Carolina Governor James Hunt, for having ties to “the queers” and a “radical feminist connection.” The demeaning comment did not sound any better in context: Allen had said, “We could expound on and undertake a campaign against Jim Hunt’s connections with the homosexuals, the labor union connection, the radical feminist connection, the socialist connection . . . . We could go back and do the same thing with the queers.”
Allen’s explanation at his confirmation hearing did not help. He claimed to have meant only that Hunt’s campaign affiliated with “odd” people. Spectators were unpersuaded; in the words of NPR, “Claude Allen embarrassed the GOP with his slurs against gays and feminists and two decades later during the Senate Confirmation Hearing he didn’t back away from them.”
Allen’s ties to Jesse Helms presented a broader problem for the African-American judicial nominee. Senators questioned Allen about Helms’s 1983 filibuster of the proposed federal holiday honoring Martin Luther King Jr. In response, Allen described Senator Helms’ move as “deeply conflicting” and described the filibuster as “the most difficult day” of his life.
Although the NAACP did not formally oppose Allen’s nomination, other civil-rights groups did. The Leadership Conference for Civil Rights, for example, described itself as “especially troubled by Claude Allen’s record on civil rights”—pointing, among other things, to Allen’s defense of Helms’s voting record.
Second, these civil-rights concerns were exacerbated by Allen’s record in government, both in Virginia and in the Bush administration.
When Allen served as Deputy Secretary of HHS, for instance, the agency defined a fetus as a child eligible for SCHIP funds. Needless to say, this change delighted pro-life groups and horrified pro-choice groups.
But it was Allen’s record in Virginia that proved most controversial. For instance, while leading Virginia’s Department of Health and Human Resources, Allen supported abstinence-only AIDS prevention and blocked a rape victim from receiving Medicaid funds to have an abortion after she was impregnated by her rapist.
Perhaps most notably, Allen played a high-profile role in Governor Gilmore’s effort to keep alive Hugh Finn, a comatose man with severe brain injuries, despite objections from his wife. After Finn had been in a coma for 3 1/2 years following a car accident, his wife sought to disconnect his feeding tube, as permitted by state law. In response, his parents protested the decision, ultimately involving a state legislator, the state attorney general, and national anti-abortion groups.
Then Allen got involved. He sent health department investigators to examine Finn—without his wife’s permission—and claimed that he had been told by a state nurse that Finn might not actually be persistently vegetative; he then advised Governor Gilmore, who ultimately brought suit against Finn’s wife and claimed that she wanted to practice euthanasia. (Unsurprisingly, the Virginia Supreme Court rejected this argument and allowed Finn’s wife to proceed.) After Allen was nominated, Finn’s wife did not hold back: “Any judge has to be able to set aside their own personal and moral conviction to protect the public interest. His actions in my husband’s case show that he’s incapable of doing that,” she said.
Substantive views aside, members of both parties in Virginia complained that Allen was “at best an unresponsive manager and at worst an executive who is trying to dismantle longstanding programs for women and children.” His tenure proved so rocky that a senior Republican State Senator sponsored legislation “designed to force Allen to do a better job communicating to a variety of caregivers in the state.”
These two strands—Allen’s views and his temperament—coalesced in critiques of Allen’s nomination. Senator Leahy, for example, warned that Allen “has shown himself to be extreme with a reputation for recalcitrance and an unwillingness to work with others of differing views.” Likewise, the National Abortion Federation (NAF) argued that “Allen’s record as Secretary of Virginia Health and Human Resources reveals that he uses his political beliefs to justify his professional decisions” and that “[t]here is no reason to conclude that as a judge he would do otherwise.”
Third, Allen’s incendiary record, views, and comments were coupled with a lack of traditional legal or judicial experience. Allen had practiced law for fewer than seven years—more than five fewer than the twelve years recommended by the American Bar Association. The ABA gave Allen a rating of only “qualified”—not “well qualified”—and some members of the panel deemed him “not qualified.”
Because Allen lacked much traditional legal experience, his conservative views and record got yet more attention, and he could not attribute those views to his clients. And given his lack of experience as a lawyer qua lawyer, Allen’s social conservatism appeared to be the reason that he was nominated; NAF, along with others, argued that given “his lack of judicial experience as well as precious little experience as a practicing attorney, his strident conservative beliefs are the main qualifier for his nomination.”
Fourth, and perhaps most importantly, Allen’s nomination sparked a nasty Senatorial spat over—his place of residence. Allen lived in Virginia, home to two Republican Senators; the vacancy had traditionally been filled by judges from Maryland, home to two Democratic Senators. The Maryland Senators had previously objected to Bush’s first choice, and by nominating Allen, Bush appeared to bypass the Democratic Senators from Maryland in favor of the two Republican Senators from Virginia. The ensuing “cross-Potomac quarrel” bloodied an already controversial pick.
This dispute transcended Allen personally. As the New York Times reported, “his fate seemed decided even before he uttered his first word.” At his hearing, the witness table featured not only the two Senators from Virginia, who came to praise Allen’s nomination, but also the two Senators from Maryland, who came to bury it. Maryland’s normally mild-mannered Senator, Paul Sarbanes, became “so animated in his remarks that Senate staff members said they had never seen him so emotional”: He accused Bush of a “gross departure from practice” and vowed to oppose the nomination “with all the strength I can muster.”
All this proved too much for Allen to overcome. Democrats on the Senate Judiciary Committee blocked a committee vote; the two Maryland Democrats vowed to filibuster his nomination even if it made it to the floor; and their position proved sympathetic even to the Republican Committee Chairman, Senator Orrin Hatch. By 2005, when Bush renominated twenty prospective judges who had been halted in the previous session, Allen declined the opportunity. His ailing nomination was finally dead.
Things Go Downhill from There
For most failed judicial nominees, the story would end there. Not so for Claude Allen.
In January 2005, Bush nominated Allen to be the White House Domestic Policy Advisor—itself a move that was deemed “likely to irritate Bush’s critics.” But in February 2006, Allen unexpectedly resigned, claiming that he wanted to spend more time with his family.
Soon his actual reasoning became clear. In March 2006, Allen was arrested and charged with felony theft after committing a series of “refund fraud” shoplifting offenses. Police said that he was spotted taking merchandise—less than 75-dollars-worth!—from a Gaithersburg, MD department store on January 2; he was stopped by a store employee and issued a misdemeanor theft citation. The details of Allen’s low-tech scheme: “[S]tore employees saw Mr. Allen fill a shopping bag with merchandise and put additional items into a shopping cart. He then sought, and received a refund for some of the items and left the store without paying for others.” That citation led police to investigate further, and they determined that in 2005, Allen had received over $5,000 in refunds from department stores in at least 25 fraudulent transactions. The eclectic bill of goods included “a Bose home theater system, stereo equipment, clothes, a photo printer and items worth as little as $2.50.”
(The arrest also gave rise to an ironic conspiracy theory about an evil twin: Allen’s identical twin, Floyd Allen, had a more checkered history; their stepmother admitted that upon learning of the crimes, “I actually started to call Floyd to ask him what happened, but then I saw it wasn’t him.”)
After initially denying the allegations, in August 2006 Allen pled guilty to shoplifting and wept in court while apologizing. Allen received a sentence of “probation before judgment,” allowing him to keep his criminal record clean. His licenses to practice law in Virginia and Pennsylvania were each suspended for 90 days, however, and the District of Columbia bar counsel sought to have him disbarred; the D.C. Court of Appeals rejected that request and ordered Allen suspended for a year, agreeing that Allen’s conduct arose from “extreme stress” and noting darkly that “[t]he legal profession is a stressful occupation that can, and often does, take a toll on the mental health of its practitioners.”
Things got worse yet. In 2013, Allen’s son, Claude Allen III, was arrested in Gaithersburg and charged with a gruesome hatchet murder. The victim’s body was found in the woods behind his Allen’s home. Allen III later pled guilty to the murder and was committed to a psychiatric hospital.
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Claude Allen proved to be one of the more memorable Bush judicial nominees, but for reasons that were less than optimal. His fast rise and ideological purity could not secure him a spot on the bench, his nomination and then his career got away from him, and then he suffered a spectacular personal fall. His ultimate legacy may be to remind us that, for better or worse, lawyers and judges are people too.
This situation is one of the reasons the right lost the 4th Circuit.