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 tradition.
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 courts.
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 Circuit.
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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