Keep your eye on the 4th Circuit Court of Appeals. It has been on my radar screen since arriving in Congress, and I focused on it with great intensity while serving as Chair of the Congressional Black Caucus in the 106th Congress. Of course, I was concerned about the 4th judicial circuit because it includes South Carolina. But my interest expands well beyond looking out for my state. I recognize that the 4th Circuit serves as more than a place for legal justice, it is the embodiment of the struggle for equal justice.
As you probably know, the 4th Circuit Court of Appeals was the last federal judicial branch to be integrated. It achieved that distinction when Roger Gregory of Virginia took his oath as a member of the bench on January 18, 2001. However, it took the extraordinary action of an 11th hour recess appointment by President Clinton, or the 4th circuit would have remained all-white indefinitely, despite serving the largest minority population of any judicial circuit in the nation.
President Clinton took this extraordinary action after nominating three African-Americans to the 4th Circuit over a period of six years. Two of those nominees were blocked single-handedly by Republican Senator Jesse Helms of North Carolina. When asked why he failed to act on the nominees, Senator Helms replied that the circuit didn’t need any more justices although its caseload increased by 15 percent in five years and four of the 15 seats were vacant. We were also told that South Carolina had more than its fair share of seats on the 4th Circuit, and that the current justices were satisfied with the bench’s make-up. It doesn’t take rocket scientist to figure out what he meant by that.
But why do I say keep an eye on the 4th Circuit Court of Appeals? The game has now changed. The presidency and the Senate are now both under Republican control. When President Clinton was making judicial appointments, the Republican-controlled Senate confirmed 42% of his white nominees and only 18% of his minority nominees. White nominees’ also received Senate consideration 60 days faster than their minority counterparts. In contrast, President Bush said during his campaign that the Senate should act quickly on judicial nominations, and he expects all of his nominees to receive consideration within 60 days.
With the change in presidents, attitudes on the Republican side of the aisle have changed as well. Despite the declaration that the 4th Circuit didn’t need any more judges, Senator Strom Thurmond wasted no time in nominating U.S. District Judge Dennis Shedd to fill one of the remaining vacancies. I suspect the remain vacancies will be filled in short order.
One seat, however, still remains in question. Before leaving office, President Clinton renominated Roger Gregory to the 4th Circuit. The recess appointment only lasts for one year, and he will have to be confirmed by the same Republican Senate that let his previous nomination languish. It is my sincere hope that good judgement and fair play will prevail, and the Senate will follow the lead of Virginia’s two Republican Senators in endorsing confirmation of Gregory to the 4th Circuit permanently.
It will be very telling to watch how the drama over the 4th judicial circuit plays out. Will all the vacancies be filled? How quickly? Will any minorities be among the sitting judges?
Republicans played their political game well. They held as many judicial positions vacant as possible, and in doing so created at least 17 “judicial emergencies.” Without a doubt, we will see a new expedience in approving judicial nominees in order to pack the federal benches with Republican appointees. After all, Democrats are just one Senator shy of gaining control of the Senate and changing the dynamics for approving judicial nominees.
However, it will be the 4th Circuit Court of Appeals that will challenge this new Administration and its supporters. They already have egg on their faces after quickly abandoning their transparent excuse that the bench didn’t need any more justices. Now only time will tell if they are willing to allow Gregory to continue his service, which has been long overdue. They have three options -- justice delayed, justice denied, or justice for all. For America’s sake I hope the latter prevails.
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U.S. Congressman 
