-Caveat Lector-
http://www.nytimes.com/2000/12/28/politics/28JUDG.html
December 28, 2000
Clinton Names a Black Judge; Skirts Congress
By NEIL A. LEWIS
New York Times
WASHINGTON, Dec. 27 � Skirting Republican opposition to his
judicial choices, President Clinton today appointed the first
black judge on the United States Court of Appeals for the Fourth
Circuit in Richmond, Va. It was a move not only of historical
significance but one also carefully calculated to create
political difficulties for the Republican Party.
By using his power to make appointments during congressional
recesses to name Roger Gregory to the appeals court, Mr. Clinton
was able to bypass the Senate confirmation process temporarily.
As he made the appointment, Mr. Clinton complained about how
Republicans had blocked his efforts to nominate an
African-American to the long-vacant seat on the Fourth Circuit.
The circuit court covers five mid- Atlantic states and has a
greater percentage of black citizens than the other 10 regional
circuit courts, yet it is the only court never to have had a
black member.
"It is unconscionable that the Fourth Circuit has never had an
African-American appellate judge," the president said in an Oval
Office ceremony. "It is long past time to right that wrong.
Justice may be blind, but we all know that diversity in the
courts, as in all aspects of society, sharpens our vision and
makes us a stronger nation."
In naming Mr. Gregory, a corporate lawyer from Richmond to the
post, Mr. Clinton followed a long line of historical precedents.
The last time a president named a judge as a recess appointee was
in 1980, but the practice has been used many times to integrate
the federal bench.
William H. Hastie, the first black named to the federal bench,
was a recess appointment to a federal appeals court in
Philadelphia by President Harry S. Truman in 1949. Others who
became judges as recess appointees included Thurgood Marshall,
who went on to become the first black justice on the Supreme
Court, and A. Leon Higginbotham, who later became the chief judge
of the Third Circuit in Philadelphia.
But while the president's action resonates with this history, it
is also a highly confrontational political act in today's
circumstances.
White House officials and other Democrats said that they thought
Mr. Clinton's action was especially politically astute because it
could put the Republicans on the defensive on the issue of race
as President-elect George W. Bush tries to put together a new
administration.
Although the process by which senators block presidential
nominations is partly secret, Senator Jesse Helms, Republican of
North Carolina, is widely viewed as the main figure in foiling
Mr. Clinton's efforts to name a black to the Fourth Circuit.
Eddie Woodhouse, a spokesman for Mr. Helms, said today that the
senator had no comment.
But Senator John Ashcroft, Mr. Bush's choice to be attorney
general, has blocked at least one other black judicial nominee,
and Democrats have already said it would be an issue in his
confirmation hearings. White House officials said that the
planning for the appointment of Mr. Gregory was under way before
the Mr. Bush announced his plan to make Mr. Ashcroft attorney
general.
By naming Mr. Gregory as a recess appointee, Mr. Clinton assures
he will serve until at least the end of the first session of the
next Congress, which will probably be next October or November,
unless he is confirmed by the full Senate for life.
But White House officials and Democrats in the Senate say they
have made an intricate plan to press the issue publicly and
embarrass the Republican majority in the Senate by nominating Mr.
Gregory formally after the new Senate is sworn in Jan. 3.
That move by Mr. Clinton is especially confrontational as it
seems to rely on the highly unusual circumstance in which the
Democrats will control the Senate briefly from Jan. 3 to Jan. 20.
The Senate through that time will be evenly divided 50 to 50 and
Al Gore will still be vice president and thus able to break any
ties until he is replaced on Jan. 20 by Dick Cheney.
But even in that extraordinary window of Democratic control, the
Republicans will maintain their control of the Judiciary
Committee, which usually has to vote to send nominations to the
full Senate.
Nonetheless, it will provide an opportunity for Democrats to
discomfit the Republicans on the issue of race, an issue Mr.
Clinton suggested today.
"I have tried for five years to put an African-American on the
Fourth Circuit � for five years," Mr. Clinton said as he
presented Mr. Gregory before reporters. "I think it is most
unfortunate that it has not been done, and I just determined to
do it. It's just time to do it."
Elaine Jones, the director of the NAACP Legal Defense and
Educational Fund Inc. said Mr. Clinton had been unable to name a
black to the Fourth Circuit because "the senior senator from
North Carolina, Mr. Helms, has seen to it that the nominations
languish." Ms. Jones said that "he has used his blue slip to
block all black nominees," a reference to the blue piece of paper
used by senators to put a hold on nominations.
Mr. Clinton had previously nominated three other black lawyers to
fill the vacancy on the Fourth Circuit, including a sitting
federal trial judge.
Mr. Gregory, 47, is a 1975 graduate of Virginia State University
who earned a law degree from the University of Michigan Law
School. He then returned to teach part time at Virginia State,
where his mother had worked as a maid. Mr. Gregory is, a White
House statement said, the first in his family to go to high
school and "a testament to the power and promise of the American
dream." He practices in a firm that is devoted mostly to business
law, friends said.
The vacancy to which Mr. Gregory was appointed has been open for
10 years, which White House officials said was the longest any
seat in the nation had gone unfilled.
The seat has been declared a judicial emergency by the
Administrative Office of the Courts as it is one of five vacant
on the court, which today has only 10 judges.
The Fourth Circuit covers Maryland, Virginia, West Virginia,
North Carolina and South Carolina. It is also widely viewed as
the most aggressively conservative of the appeals courts, often
providing novel and cutting-edge rulings.
The Fourth Circuit, which is one level below the Supreme Court,
is by far the most restrictive appeals court in the nation in
granting new hearings in death penalty cases, according to
several statistical studies.
The court is highly receptive to efforts by states to restrict
abortion, and has blazed new trails in striking down laws that a
majority of its judges say improperly enhance federal power at
the expense of the states. The court ruled that the well- known
Miranda warnings given to criminal suspects by the police were no
longer necessary, a ruling reversed by the Supreme Court.
Two members, Chief Judge J. Harvie Wilkinson III and Judge J.
Michael Luttig, are considered to be on Mr. Bush's short list for
the Supreme Court when vacancies occur.
Judge Wilkinson has said that he believes his court runs
excellently with its current complement of judges and that there
was no need to fill any of the vacancies, a view Mr. Helms has
endorsed.
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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