Kwame Holman reports on the state of diversity on the federal bench.
KWAME HOLMAN: Tomorrow afternoon President Bush is scheduled to send to the Senate his first batch of nominees to fill some of nearly 100 vacant federal judgeships, and one of the most closely watched decisions is whether the President will renominate Roger Gregory to a permanent seat on the 4th Circuit Court of Appeals. Gregory, a former Richmond, Virginia trial lawyer, already sits on the 4th Circuit, put there on a temporary basis by President Clinton just weeks before he left office. Mr. Clinton described it as an emergency appointment.
PRESIDENT CLINTON: In the last five years alone 4th Circuit caseloads have increased more than 15 percent, yet, 1/3 of its judgeships are vacant. This has left too many citizens waiting in line for justice.
KWAME HOLMAN: But President Clinton gave another reason for appointing Gregory - the five states that fall within the 4th Circuit's jurisdiction: Virginia, West Virginia, Maryland, North Carolina, and South Carolina have a combined African-American population of 30 percent, yet, in the 100 year history of the Court not one of its judges had been black.
PRESIDENT CLINTON: It is unconscionable that the 4th Circuit, with the largest African-American population of any circuit in our nation, has never had an African-American appellate judge.
KWAME HOLMAN: In January, Virginia's two Senators, John Warner and George Allen, both Republicans, spoke on the Senate floor in support of placing Gregory permanently on the Court.
SEN. GEORGE ALLEN: Mr. President, I submit to you and to my colleagues that Judge Roger L. Gregory is an exemplary citizen of the Commonwealth of Virginia; he has a sense of the properly restrained role of the Judiciary, and is eminently qualified to serve with distinction.
SEN. GEORGE ALLEN: He has the added bonus; he brings the diversity of background to that court.
KWAME HOLMAN: But in March President Bush withdrew the names of all of Mr. Clinton's judicial nominees who had not been confirmed by the Senate; that included Gregory's nomination to a permanent seat on the 4th Circuit. Allen fears Gregory's chances of renomination will be hampered by bad feelings about other final acts of the Clinton administration.
SEN. GEORGE ALLEN: Obviously in the last moments of this presidency President Clinton once again makes this interim appointment, and, again, that's aggravating to a lot of people, and, unfortunately, Judge Gregory was just put in the whole tide of last minute appointments, last minute executive orders and so forth.
KWAME HOLMAN: The 4th Circuit Court of Appeals sits in Richmond, Virginia. It hears cases as one of the twelve regional federal circuits, the last stop on the judicial trail before the Supreme Court. Legal experts consider it to be the most conservative in the appellate system. President Clinton made several attempts to place an African-American on the Court during his administration. One of them was James Wynn, a North Carolina state appeals court judge.
JUDGE JAMES A. WYNN, JR.: Diversity is important, and not so much from the perspective of just having an African-American, of having someone of color on it. It's important because our citizens need to be able to believe the Court reflects the look of its citizenry to give the citizens at least that opportunity to feel the concerns that they have, there's someone up there that perhaps has that level of experience.
KWAME HOLMAN: As reported on the NewsHour last year, it was North Carolina's Democratic Senator John Edwards who requested Winn be nominated to the 4th Circuit Court.
SEN. JOHN EDWARDS: He's an outstanding judge, has been for many years, well respected by all lawyers who appear before.
KWAME HOLMAN: But Judge Wynn's nomination ultimately was blocked by North Carolina's Republican Senators.
SPOKESMAN: Senator Jesse Helms.
KWAME HOLMAN: Senator Jesse Helms was able to block Judge Wynn's nomination through a Senate device known simply as the blue slip. It gives either of the nominees two home state Senators almost absolute power to block a judicial nomination.
JUDGE JAMES A. WYNN, JR.: Thus, in effect, a veto. Some say a delay or whatever, but it's veto, and it's a veto that I certainly have to respect.
KWAME HOLMAN: The nomination of Judge Wynn no longer is pending, and recently he talked with us about his meeting with Senator Helms and the reason Helms gave for blocking his nomination.
JUDGE JAMES A. WYNN, JR.: I met with Senator Helms and he informed me that through his information provided by Chief Judge Hobby Wilkinson the Court didn't need any more judges; that the work that they were doing was very effective and even though there were four and soon to be five vacancies, the Court didn't need any more and that he had nothing against me, and I took the Court's word on that, and that's all I could do. He's never committed any grief, presented any issue to me that his decision was based on race.
KWAME HOLMAN: There were several vacancies on the Court when Judge Winn was nominated, and there were no judges from North Carolina, the largest state in the Circuit, yet, at that time Chief Judge Harvey Wilkinson told us he had all the judges he needed.
HON. J. HARVIE WILKINSON, III: If you have a court of 12 people, you can reach a decision much more quickly and efficiently than if you have a court of twenty to twenty-three people, and on our court before an opinion is released, you have - every judge acknowledges that opinion or signs off on it, and if we continue to expand the number of judges on the court's circuit, it's going to make that process more cumbersome.
KWAME HOLMAN: When we talked with Judge Wilkinson by phone last week he said his position on the size of the court hadn't changed and that troubled Judge Wynn.
JUDGE JAMES A. WYNN, JR.: Well, I certainly accept that Chief Judge Wilkinson has a responsibility of determining the administration of the Court. I do believe, however, ultimately that is the responsibility of the United States Senate, as well as the chief justice, and he has a conference that's specifically designated to do that. The danger, I think, Kwame, of having this role of the chief judge versus the administrator of the court is that the chief judge is a player. He is one of the judges who makes decisions on the Court and ultimately, if you have a role in determining who and when can come to the Court, you may, in fact, be able to affect the decision-making process, and I'm not saying he is, but that possibility exists there.
KWAME HOLMAN: Judge Winn says he's hoping Roger Gregory will succeed where he couldn't and become the first permanent African-American judge in the history of the 4th Circuit Court of Appeals. And with vacancies currently on the Court, Winn says there's room for more.
JUDGE JAMES A. WYNN, JR.: The Court has an allocation for 15 members. I certainly hope it's not offensive for the Court to have two or perhaps three African-Americans of fifteen, and I'm from the state of North Carolina, and we have no judges whatsoever at the court, and that is I think something that's far more compelling to consider than something you should embrace.
KWAME HOLMAN: But the focus of Virginia Senator George Allen is Roger Gregory's nomination.
SEN. GEORGE ALLEN: And what I'm trying to do is to get my colleagues, including, in fact, the President and the Bush Administration to look beyond the aggravation of these last-minute appointments and last-minute executive orders and look at Roger Gregory, examine him as the man, as a human being. And I think that they'll come away as impressed and as comfortable with Roger Gregory as I am.
KWAME HOLMAN: Marshall Wittman, an analyst with the conservative Hudson Institute in Washington, says there's hope for Gregory. He says President Bush has good reason to nominate him.
MARSHALL WITTMAN: President Bush wants a grab bag, and the 4th Circuit is a perfect example of that. Choose some moderates or even some Democrats who will sway the Democrats and then choose some conservatives who will make the conservatives happy. His task is to make everyone happy in an evenly divided Senate.
KWAME HOLMAN: But that process could prove difficult for President Bush. Fresh partisan disagreements recently erupted in the 50/50 Senate over how to move judicial nominations even before Mr. Bush sends up his first candidate.