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Roger Gregory is no ideologue. And that could make all the difference when the dust settles on his controversial appointment to the famously conservative 4th U.S. Circuit Court of Appeals. Named last week as a recess appointee by lame duck President Bill Clinton, the Richmond, Va., attorney is as levelheaded and scholarly as his appointment was blatantly political. And that may be Gregory’s best weapon for surviving the one-year term of his appointment and securing life-tenure confirmation by the Senate. Some conservatives consider the Dec. 27 surprise appointment an insult. It doesn’t help that last year Clinton agreed not to make recess appointments, judicial or otherwise, without consulting Senate majority leaders. “This is the equivalent of an obscene gesture directed at Congress,” says Thomas Jipping, director of the Free Congress Foundation’s Center for Law and Democracy. But for many 4th Circuit observers, Gregory’s appointment as the court’s first African-American is welcome news. “Appointing a respected but Democratic jurist to the 4th Circuit at this point is like hauling the Confederate flag down from the South Carolina Capitol, at least briefly,” says Charles Tiefer, a professor at the University of Baltimore School of Law. The 47-year-old Gregory, expected to be sworn in this month, won’t be a firebrand on the bench, say people who know him well. Former Virginia Gov. L. Douglas Wilder, Gregory’s former law partner, says Gregory was troubled by the prospect of becoming a judge under such controversial circumstances. “He would not bring to the bench the stormy activist, but a reasoning and listening mind,” Wilder says. Gregory, who is still working at his law firm, did not return calls seeking comment. The decision to make the recess appointment was percolating long before President-elect George W. Bush named conservative Sen. John Ashcroft, R-Mo., as his nominee for attorney general, according to another Clinton nominee to the 4th Circuit, who says he was told about the plan before Election Day. While Sen. Jesse Helms, R-N.C., Jipping, and others have lambasted Clinton’s maneuver, Gregory’s prospects for survival appear fairly strong. Helms said last week he will not try to block his confirmation. And Gregory may be somewhat insulated by support among other Republicans, including Virginia Sen. John Warner and Sen.-elect George Allen. If historical precedent is a guide, Gregory’s chances of confirmation are good: The Senate has confirmed about 85 percent of the 300 or so recess appointees to the federal bench, according to a White House press release. If Bush or the Senate were to remove or replace him, it would be a year after he took the post and long after Clinton left the White House. Jipping notes, however, that “Bush is under no obligation to honor a partisan political stunt by Bill Clinton.” SHORT CIRCUIT With 15 seats on the court, the 4th Circuit has been operating with only 10 judges since Judge Francis Murnaghan Jr. died in August. While three of the 10 were nominated by Democratic presidents, including two by Clinton, the court is considered the most conservative circuit court in the nation. In 1999, it ruled that statements made by defendants who had not been read their Miranda warnings were constitutional, only to be reversed by the Supreme Court last October. Two of its members, Chief Judge J. Harvie Wilkinson III and Judge J. Michael Luttig, are considered top prospects for the Supreme Court should a vacancy open during the Bush administration. Clinton initially nominated Gregory in June, but the Senate Judiciary Committee never voted on Gregory or any of the other African-Americans Clinton tapped for the 4th Circuit: Judge James Beaty Jr. of the Middle District of North Carolina, nominated in December 1995 and re-nominated in January 1997; Judge James Wynn of the North Carolina Court of Appeals, nominated in August 1999; and Judge Andre Davis of the U.S. District Court for the Central District of Maryland, nominated in October 2000. The reasoning given by Sen. Helms for blocking the hearings of the nominees from his home state has been that Wilkinson has said the 4th Circuit was running efficiently and didn’t need the full complement of judges. White House spokesman Jake Siewert says that Helms’ refusal to endorse nominees from North Carolina played a role in Clinton’s decision to use the recess appointment for Gregory rather than Judge Wynn. In an interview last week, Wilkinson said that Gregory “will be welcome” on the court. “The 4th Circuit will continue to do what it has always done, and that is to afford our most conscientious consideration to each and every litigant,” he added, declining to comment further. James Crockett Jr., a partner in the Richmond office of Troutman Sanders Mays & Valentine, says the new addition might help the court keep the pace. “It’s generally noticed that they’re not as fast as they used to be,” he notes. Gregory’s temperament may be well-suited to his new job, which mandates a studious, slightly “monastic” lifestyle, according to Crockett, who worked as a law clerk for the late 4th Circuit Judge Albert Bryan. And Gregory’s presence might blunt criticism of a bench hammered by Clinton and others for its all-white composition in a 22 percent African-American jurisdiction. “The criticisms heretofore leveled at the 4th Circuit could somehow be muted just with the knowledge that Roger is there,” says Wilder. But Gregory may not radically alter the judicial philosophy of the court. “One of the things he’ll bring to the court is a perspective of things that are a little bit away from the mainstream white business establishment that characterizes the Republican appointees,” says John Gibney Jr., a partner in Richmond’s Shuford, Rubin & Gibney. But, he adds, “I think the jurisprudential makeup of that court is pretty well set. I’m not so sure that Roger is terribly far from the conservative core of the court.” ‘QUIET, DETERMINED’ Born in Philadelphia and reared in Petersburg, Va., Gregory was the first member of his family to graduate from high school. He graduated summa cum laude from Virginia State University in 1975. It was at VSU, Wilder says, that Gregory first impressed him. Wilder was Gregory’s professor in political science and constitutional law, classes in which he received A’s. After graduating in 1978 from the University of Michigan Law School, Gregory returned to Virginia. He joined Hunton & Williams in its Richmond headquarters as an associate in the litigation department and stayed until 1982, when he and Wilder opened Wilder & Gregory. The 10-lawyer firm’s clients include the Richmond school board, Kemper Insurance Cos., and General Motors Corp. Gregory has appeared before the 4th Circuit in a variety of cases, including criminal and business matters, as well as one case in which he defended then-Gov. Wilder when a third-party candidate challenged the rules of a televised debate. Robert Merhige Jr., a former judge on the U.S. District Court for the Eastern District of Virginia, describes Gregory as “low key” and “very competent.” “I remember having the impression that he is a quiet, determined man. I’m glad he got the appointment,” adds Merhige who is now of counsel at Hunton & Williams. “He is intellectual without being aloof,” says John Bates III, a partner at McGuireWoods and chairman of Richmond Renaissance, a civic revitalization organization of which Gregory is executive committee chair. “He’s got a wonderful sense of perspective, the long view,” Bates says. Gregory was the first African-American rector of Virginia Commonwealth University. He also serves on the board of the Christian Children’s Fund, for which he traveled to India earlier this year with his mentor at Hunton & Williams, Lewis Booker, general counsel to the fund for the past three decades. Gregory’s wife, Carla, with whom he has three daughters, is library manager for the Philip Morris Cos. As managing partner of the firm, a position he still holds, Gregory “did it all,” Wilder says. “Roger would bring in cases, more than anyone else, and he would try the cases, which is something not usually done by a managing partner. Then he would manage the office and be the first there and the last to leave. It was a commitment. He’s never been concerned with how much money he could make. But he is very concerned that personnel are treated fairly. He understands the concerns of working people,” Wilder adds. “Roger knows all sides of the street.”

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