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When President Bill Clinton threw Roger Gregory onto the 4th U.S. Circuit Court of Appeals in a recess appointment last year, the move surprised and angered a number of Republicans. But when Gregory went before the Senate Judiciary Committee on Wednesday as a nominee of President George W. Bush, it was nothing less than a love fest. Gregory received only praise from bipartisan members of his home state delegation, Virginia Republican Sens. John Warner and George Allen and Democratic Rep. Robert Scott. “We stand united behind this distinguished nominee,” said Warner. Allen described Gregory as “a person who will serve with dignity and integrity.” Scott followed, calling the nomination of the first African-American to the 4th Circuit bench “a source of pride for all Virginians. “He has earned the respect of his colleagues on the bench,” he added. The praise did not stop there. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and new committee member Sen. John Edwards, D-N.C. — two of only four committee members, including Sen. Orrin Hatch, R-Utah, and Sen. Maria Cantwell, D-Wash., who attended even parts of the hearing — jumped in as well. Said Leahy: “He’s proven himself to be fair and collegial.” “You are held in uniform high regard,” effused Edwards, who then labeled the nomination “an important moment for the country.” Gregory’s initial introduction to the Senate last year was not nearly as kind. Originally nominated by Clinton last June for the 4th Circuit, he did not receive a hearing before the Senate recessed at the end of Clinton’s term, despite public support by Warner. Another African-American nominee to the 4th Circuit — North Carolina Court of Appeals Judge James Wynn Jr. — who was named by the Democratic president almost a year before Gregory, met a similar fate. While backed by Edwards, Wynn did not gain the support of Republican Sen. Jesse Helms, who kept Wynn from getting a hearing. Stirring up partisan controversy, Clinton then added Gregory through a temporary recess appointment that placed him on the bench without Senate consideration. The 4th Circuit has the greatest number of minorities within its states — Maryland, Virginia, West Virginia, North Carolina, and South Carolina — of any federal circuit. But until the addition of Gregory, once a law partner of former Virginia Gov. L. Douglas Wilder, it had never housed an African-American judge. Clinton soon followed his end-of-administration power play by resubmitting Gregory’s name as a nominee for a permanent spot on the bench. Bush then erased the nomination at the start of his term. However, with the continued support of fellow Republicans Warner and Allen, and possibly out of a desire to lessen Democratic opposition to his first batch of 11 circuit nominees, Bush resubmitted Gregory’s name to the Senate. But Gregory’s hearing on Wednesday was not without a small measure of controversy. After lavishing praise on the nominee, Edwards chose not to ask him questions, but instead lamented about the continuing lack of a North Carolina judge on the bench. “We have had some difficulty over the past few years getting judges from North Carolina a hearing,” he said. “We want very much for our state to be represented on the 4th Circuit.” Bush has tapped one North Carolinian, Eastern District of North Carolina Chief Judge Terrence Boyle, for the 4th Circuit, but he has not yet come before the Senate. Gregory himself is no longer a source of political controversy. During the six months he has spent on the bench, he has authored only a handful of cases, keeping away from dissents and ideological hot buttons that prompt Senate scrutiny. In his most scintillating opinion to date, he affirmed Eastern District of Virginia Chief Judge Claude Hilton’s summary judgment ruling that Prince William County, Va., police had not used excessive force in the death of Brian Cox. When a neighbor reported a possible burglary at Cox’s house, police searched the area. When Cox, sleeping in a bedroom, pointed a rifle at one of the cops, another shot and killed him. “We believe that the officers had sound reason to believe that Cox posed a threat of serious physical harm,” wrote Gregory in an opinion unanimously joined by Judge Robert King and Senior Judge Clyde Hamilton. He also affirmed in part and vacated in part another Hilton grant of summary judgment in a complex commercial dispute, and found that District of Maryland Judge William Nickerson committed no procedural errors in a sexual harassment trial. Both opinions were unanimously joined by the other two judges on the panel — King and Hamilton, and Chief Judge J. Harvie Wilkinson III and Judge J. Michael Luttig, respectively. Less than two weeks ago, he strayed from the majority decision in a rehearing en banc to separately concur, with Judge Paul Niemeyer, in a case that upheld one drug dealer’s sentence and threw out a second dealer’s sentence. While Wilkinson and Luttig also concurred, none of the 11 judges dissented. If the testimony before the judiciary committee is any indication, Gregory may never make too many waves as a lifetime member of the circuit. Saying Gregory was not an activist, Allen explained, “He understands … that the judicial branch is not the legislative branch.” In response to a question by Leahy about the value of precedent, Gregory said, “Those are my marching orders, if you will.” And when asked what he would do if he disagreed with a U.S. Supreme Court decision, Gregory answered, “I have to follow it, and I will follow it.”

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