| PRESIDENT CLINTON APPOINTS ROGER GREGORY TO THE |
| UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT |
| December 27, 2000 |
Today, President Clinton appointed Roger Gregory to serve on the United
States Court of Appeals for the Fourth Circuit. This appointment is
historic. The Fourth Circuit, which hears appeals from trial courts in
Maryland, North Carolina, South Carolina, Virginia, and West Virginia, has
the largest African American population of any circuit in this country, yet
it has never had an African American appellate judge. The President's
power to make recess appointments is embedded in the Constitution.
Presidents have made more than 300 recess appointments to the federal
judiciary since 1789, the year of the first judicial recess appointment.
Moreover, Presidents have often exercised their recess powers to make
historic appointments to bring diversity to the courts. Four of the five
first African American appellate judges were recess appointed to their
first Article III position. The recess appointment of Roger Gregory to the
United States Court of Appeals for the Fourth Circuit is in this grand
Integrating the Fourth Circuit with the Appointment of Roger Gregory
The United States Court of Appeals for the Fourth Circuit serves the people
of Maryland, North Carolina, South Carolina, Virginia, and West Virginia,
states that have the largest African American population of any circuit in
the country. Yet, until the President recess appointed Roger Gregory, the
Fourth Circuit had never had an African American appellate judge. The
President has nominated four qualified African Americans to the Fourth
Circuit: Judge James Beatty, of North Carolina, nominated in December 1995
and re-nominated in January 1997; Judge James Wynn, of North Carolina,
nominated in August 1999; Roger Gregory, of Virginia, nominated in June
2000, and Judge Andre Davis, nominated in October 2000. None of these
exceptional candidates has even received a Judiciary Committee hearing, let
alone a vote on the Senate floor.
Roger Gregory?s story is a testament to the power and promise of the
American dream. Roger Gregory is from Richmond, Virginia, and is the first
in his family to finish high school. He went on to college and law school,
returning as a young adjunct professor to a school where his mother had
worked as a maid. Today Roger Gregory is a highly respected, seasoned
Richmond litigator. Gregory has tried hundreds of cases in the Virginia
The seat for which the President nominated Roger Gregory has been declared
a ?judicial emergency? by the Administrative Office of the United States
Courts. It has been vacant for almost a decade, longer than any seat in
the nation. Before Gregory was recess appointed, fully one third of the
Fourth Circuit ? five of fifteen seats ? was empty. Gregory?s appointment
not only cures a historical injustice but fills a dire need in the Fourth
Gregory was never afforded a Judiciary Committee hearing, notwithstanding
the fact that he received the enthusiastic support of both of his home
state Senators. Democratic Senator Chuck Robb recommended Gregory to the
President and worked tirelessly on behalf of Gregory?s nomination.
Republican Senator John Warner publicly endorsed Gregory?s candidacy,
stating that Gregory is ?a well-qualified nominee who would serve as an
excellent jurist on this circuit which is vital to our state.?
The President has the authority, pursuant to Article II of the
Constitution, to recess appoint federal judges. In fact, President George
Washington recess appointed two district judges in 1789, immediately after
the first session of the first Congress. Since then, Presidents of all
parties ? Republicans, Democrats, Federalists, Jeffersonian Republicans,
Whigs -- have made more than 300 recess appointments to the federal
judiciary, including 11 Supreme Court appointments.
All three branches have, in one fashion or another, accepted the right of
the President to make recess appointments. It has been the long-standing
position of the Executive Branch that the President has the power to make
such appointments. This position is corroborated by historical statements
of Attorneys General and Office of Legal Counsel opinions supporting the
President's power to make such appointments.
The Legislative Branch has accepted the President?s right to make judicial
recess appointments, both by statement and action. In a 1960 Senate
Resolution urging the President discourage recess appointments to the
Supreme Court, the sponsor of the resolution noted that ?[t]he President
does have such power and this resolution does not argue otherwise.?
Likewise, the Senate has proceeded to confirm approximately 85% of past
judicial recess appointees, including all but one Supreme Court
appointment. Finally, although the Supreme Court has never addressed the
issue, the two federal appellate courts that have reviewed the issue have
affirmed the power of judges appointed through recess appointment.
Tradition of Recess Appointments
Some of the most well respected jurists have originally received recess
appointments, including Pennsylvania district court judge (later Third
Circuit judge) Judge A. Leon Higginbotham; D.C. Circuit Judges David
Bazelon and Spottswood Robinson; Second Circuit Judges Augustus N. Hand and
Thurgood Marshall; Fifth Circuit Judge Griffin Bell; and Supreme Court
Justices William Brennan and Earl Warren. Indeed, Justice Earl Warren was
sitting as a recess appointee when the Court re-heard argument in Brown v.
Board of Education.
Presidents have often exercised their recess powers to make historic
appointments to bring diversity to the courts. Four of the five first
African American appellate judges were recess-appointed to their first
Article III position: Judge William Hastie, recess appointed to the Third
Circuit by President Truman in 1949; Judge Thurgood Marshall, recess
appointed to the Second Circuit by President Kennedy in 1961; Judge
Spottswood Robinson recess appointed to the D.C. District Court by
President Kennedy in 1961; and Judge A. Leon Higginbotham, recess appointed
to the Eastern District of Pennsylvania by President Johnson in 1964.
Likewise, two of the three first women judges received recess appointments:
Judge Burnita Shelton Matthews, recess appointed by President Truman to
the D.C. District Court in 1949 and Judge Sarah Hughes, recess appointed by
President Kennedy to the Northern District of Texas in 1961.
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