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

THE BALTIMORE SUN

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.

District of Columbia congressional Del. Eleanor Holmes Norton, a Democrat and chairwoman of the Congressional Black Caucus' Judicial Task Force, said Clinton "has shown exhaustive patience in waiting for the Senate to name an African-American to the circuit. This was a top priority of the caucus."

Future in doubt

But after Gregory takes the oath of office and begins serving, probably this month, his future as a judge - and thus the near-term future of the 4th Circuit - will remain in doubt.

While Clinton formally proposed Gregory for a permanent seat Wednesday, it is unclear whether the Senate would act quickly, in Clinton's remaining days in the White House. That would then raise the question of whether Bush, when he becomes president, would endorse the nomination of Gregory or make a new nomination.

The president-elect's staff has said he has taken no position on the issue but will review it after his inauguration Jan. 20.

One Republican senator, James M. Inhofe of Oklahoma, has said he will oppose a permanent seat for Gregory, as his way of protesting Clinton's decision to place the lawyer on the bench by recess appointment. He said the maneuver was a challenge to the Senate's prerogatives and that he expected his opposition to pick up bipartisan support.

Inhofe stressed that he would not attack the merits of Gregory's nomination. "Whether this nomination is good or bad for the federal judiciary is beside the point," he said. "The critical issue is how the appointment is being made."

Civil rights and other liberal advocacy groups have praised Gregory's appointment and made clear they see his chance for a permanent seat as a test of Bush's willingness to pick minorities for federal judgeships.

Eliot Mincberg, legal director of the liberal advocacy group People for the American Way, commented: "If Bush and the Republican Senate ignore a Gregory nomination, and hold no hearing, it will be a major slap in the face of the African-American community and of anybody who cares about justice and equality."

Conservative record

But behind the coming dispute over Gregory is the long-running feud over the 4th Circuit Court itself. It has been a sustained target of liberal activists because of its conservative record.

A strong opponent of affirmative action programs to aid blacks and other minorities, it struck down a blacks-only scholarship program at the University of Maryland, College Park and minority admissions programs in the Montgomery County, Md., and Arlington County, Va., public schools. The Supreme Court left those decisions intact.

It would have allowed the Virginia Military Institute to continue to bar women cadets, but that was overturned by the Supreme Court. The 4th Circuit judges voted to uphold a federal law seeking to end the famous "Miranda warnings" for criminal suspects, but the Supreme Court found that law unconstitutional.

The Circuit Court has also allowed criminal law to be used to police the conduct of poor women during pregnancy, if there is a chance they are using drugs - a decision being reviewed by the Supreme Court.

The 4th Circuit struck down, on states' rights grounds, a key part of a federal law that allowed women who have been sexually assaulted to sue their attackers in federal court - a decision the Supreme Court upheld.

The court is authorized 15 seats, but only 10 are occupied. Although five states make up the 4th Circuit, no judges are seated from the largest of those states - North Carolina. Maryland has two - Niemeyer and Diana Gribbon Motz, also of Baltimore. Virginia has three, South Carolina three and West Virginia two.

Clinton has tried to put North Carolinians on the court, but he has done so as part of his campaign to break the court's color barrier. He began that campaign in 1995, first proposing a black federal judge from Winston-Salem, James A. Beaty Jr.

After the Senate took no action on Beaty, Clinton proposed a black state judge from Cary, N.C., James A. Wynn Jr. Again, the Senate took no action. (Clinton moved Wednesday to formally nominate Wynn again.)

Those first Clinton nominations of African-Americans drew the opposition of conservative Sen. Jesse Helms, a North Carolina Republican, and the Senate deferred to Helms under its long-standing tradition of respecting the wishes of a senator from a nominee's home state.

Helms' main argument each time has been that the appeals court does not need more judges, so the vacancies need not be filled. He has been supported in the argument by Wilkinson, who says his court operates more efficiently with fewer judges.

Last year, Helms proposed a bill to cut the full-strength allotment of the court by two, to 13, but that bill was not passed.

Clinton, frustrated by Helms' opposition, turned last year to blacks from other states - Virginia's Gregory and Maryland's Davis. Again, though, the result has been the same - no Senate action. Now, Clinton has moved to change the dynamic with Gregory's appointment.

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