Politics, race cloud naming of judges to U.S. 4th Circuit

Clinton ducks Senate to appoint first black

January 08, 2001|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - A court that has become a prime example of how politics shapes the federal judiciary and influences its decisions is now being plunged deeper into White House and Senate politics.

The 4th U.S. Circuit Court of Appeals, based in Richmond, Va., includes Maryland in its five-state region and plays the central role in interpreting and applying federal law in those mid-Atlantic states.

It is a court frequently embroiled in controversy because it has no black judges, despite a large black population in its region. It also has no judges from its largest state - North Carolina. And both situations are the result of politics. Its conservative makeup is also the product of political choice.

Now, a fresh dispute has arisen. President Clinton, preparing to leave office this month, has placed a black judge - Richmond lawyer Roger Gregory - on that court, side- stepping the Senate approval process.

Gregory's "recess appointment" will last until the end of this year's congressional session, unless in the meantime the Senate approves a lifetime seat for him, which is problematic.

Clinton and Senate Republicans have been at a standoff for years over filling vacancies on the court. Because of that impasse, one-third of that court's 15 seats are vacant and one of those has stood vacant for a decade.

The U.S. Judicial Conference, the policy-making arm of the federal courts composed of 26 federal judges, has declared "judicial emergencies" for two of the court's vacant seats - including the one Gregory will fill. That label is an indication that the judiciary itself fears a significant slowdown in the court's work if the seats are not filled.

That is a fear, though, that is not shared by the court's chief judge, J. Harvie Wilkinson III of Charlottesville, Va., who has said repeatedly that his court has enough judges despite vacancies.

Vacancies alone do not account for the continuing political conflict. No other federal court has had its membership so carefully chosen along ideological lines - a process that has resulted in the creation of a tribunal that is widely regarded as the most conservative in the federal judiciary.

Clinton has been unable to interrupt that trend, even with four appointments to the Richmond court of moderate to liberal judges. In fact, the appeals court's most significant rulings continue to outrun even the conservative trends that have prevailed for years in the U.S. Supreme Court.

Supreme Court speculation

And there is another unique aspect to the 4th Circuit Court: No other federal court is as widely perceived as the likely source of future Supreme Court nominees by President-elect George W. Bush, should he get any opportunities as president to name new justices.

Many of the court's conservative opinions have been written by circuit judges whose names are often mentioned in speculation about future Bush appointees to the Supreme Court: Wilkinson and Judges Paul V. Niemeyer of Baltimore and J. Michael Luttig of McLean, Va.

The Richmond court's future is of great interest to Democrats and Republicans alike, to the White House and the Senate, and to advocacy groups from left to right.

Clinton's decision to break the 4th Circuit Court's color barrier, with the appointment of Gregory, a former law partner of a one-time Virginia Gov. L. Douglas Wilder, fulfilled a commitment that Clinton had made privately over a year ago to the Congressional Black Caucus. It is a gesture he has tried to make four times before over the past five years - only to have each nomination of a black judicial candidate founder in the Senate confirmation process.

Gregory was first proposed by Clinton for a 4th Circuit seat in June. He was one of two blacks that Clinton nominated last year for seats on that court; the other was U.S. District Judge Andre M. Davis of Baltimore, chosen in October. The Senate recessed without acting on either nomination.

Sidestepping the Senate

But the president took a different route this time: He gave Gregory an appointment to the bench while Congress was in year-end recess, thus clearing the way for the lawyer to ascend to the bench, without Senate review or approval. Such a recess appointment was exactly what the Congressional Black Caucus had urged Clinton to do, to get around the Senate impasse on 4th Circuit appointments.

Clinton's move has major symbolic significance, for civil rights groups and especially for the 5.5 million blacks who live in the 4th Circuit's area - who form the largest percentage black population in any federal circuit.

Maryland Democratic Rep. Elijah E. Cummings, noting the circuit's black population and the failure of past black judicial nominees to gain a Senate hearing, called the appointment "an historic moment."

Cummings has urged Clinton to give a similar "recess appointment" to Davis, but that does not appear likely.

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