New Republican Senator Pushes Terrible Appellate Pick

George Allen's blunder on Roger Gregory

The first federal appellate judge George W. Bush appointed was Fourth Circuit judge Roger L. Gregory, whom Bill Clinton had recess-appointed to a temporary seat on the Fourth Circuit in late December 2000. There are a lot of lessons to learn from this terrible blunder.

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When Bush announced his initial slate of eleven appellate nominees in May 2001, he declared that each of them had “sterling credentials and … met high standards of legal training, temperament and judgment.” Further, each of them “clearly understands that the role of a judge is to interpret the law, not to legislate from the bench.” There was no reason for Bush to believe that these statements were true of Roger Gregory.

When Clinton first nominated Gregory to the Fourth Circuit at the very end of June 2000, the American Bar Association’s judicial-evaluations committee gave Gregory a very low rating: a substantial majority of the committee rated Gregory “qualified” for the nomination, while a minority of the committee rated him “not qualified.” There are instances in which the ABA’s minimum standard for years of practice leads the committee to give a low rating to a candidate of exceptional abilities, but this was not one of them: Gregory had been a lawyer for more than two decades. So the ABA committee that reviewed his qualifications in 2000 certainly did not find them to be “sterling.”

I certainly don’t mean to imply that I accept the ABA ratings as authoritative. (Much more to come on this.) But evidence that there is “some systematic bias toward Democratic nominees in the ABA’s ratings” cuts against Gregory. The ABA also has a practice of notifying the White House if it expects to give a candidate a “not qualified” rating. So by including the ABA in the pre-nomination process, the Clinton White House would have able to work the ref, so to speak, to come up with the minimally acceptable rating that would allow Clinton to proceed to nominate Gregory. (In 2001, the Bush White House excluded the ABA from the pre-nomination process. After Bush renominated him, the ABA committee unanimously rated Gregory “qualified.”)

As for Bush’s general statement that his nominees understood that “the role of a judge is to interpret the law, not to legislate from the bench”: Insofar as that meant that his nominees were judicial conservatives, there was nothing in Gregory’s record to indicate that he was. And do we really think that Clinton would have nominated him in the first place and then recess-appointed him if Gregory were a judicial conservative? (There were one or two instances in which home-state senators extracted from Clinton a more conservative appellate nominee than he would have preferred, but there is zero evidence that the sole Republican senator from Virginia in 2000, the liberal John Warner, did so.)

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As we have seen, far from seeing Gregory as a judicial conservative (much less a “sterling” one), Bush included Gregory and one other Clinton appointee, Barrington D. Parker Jr., in his initial slate of federal appellate picks as a peace offering to Senate Democrats. If Republicans had continued to control the Senate, Bush’s deal might have worked: Republicans could have controlled when nominees went through the confirmation pipeline. Democrats would have been eager to have the Senate confirm Gregory before his recess appointment expired at the end of the Senate’s 2001 session, so Republicans would have been in a strong position to get some of Bush’s best nominees confirmed by then.

But when Senator Jim Jeffords’s defection from the Republican party—announced a mere 15 days after Bush presented his judicial slate—gave control of the Senate to the Democrats, Bush’s peace offering turned into a surrender. It was Democrats who then could control which nominees got confirmed when, and they raced to confirm Gregory and Parker.

Bush had one tool at his disposal, but he never thought about using it. The Senate’s confirmation of a judicial nomination is antecedent to the president’s discretionary act of appointing the confirmed nominee. When Jeffords announced his switch, Bush could have told Senate Democrats that he would not appoint Gregory or Parker until the Senate had also confirmed specific other nominees. But Bush, I’m told, had no interest in playing hardball.

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The deeper blame for the Gregory nomination lies not with Bush but with the newly elected conservative Republican senator from Virginia, George Allen. Allen defeated the Democratic incumbent Chuck Robb in November 2000. Upon taking his Senate seat, Allen immediately embraced the cause of getting Gregory confirmed to a lifetime position on the Fourth Circuit. On January 25, 2001, he devoted his maiden speech in the Senate to Gregory’s confirmation. (Clinton’s nomination of Gregory was still pending in the Senate.) Some excerpts:

A few weeks ago, I had the opportunity to personally sit down and talk with and kind of interview Judge Gregory. I am truly impressed and comfortable with his judicial philosophy. Judge Gregory understands that the judicial branch is not the legislative branch. He believes in the rule of law and stated that he would adhere to precedents established by the Fourth Circuit and the Supreme Court to guide his decisions.

During our conversation, Judge Gregory told me that he does not believe justice is what he called, ‘‘result oriented,’’ and instead, he believes the ‘‘administration of justice is a process.’’ He was firm in his conviction that his charge as a judge is to ‘‘follow the rule of law and not participate in an activist court; as result-oriented judges are very dangerous.’’

Moreover, Judge Gregory articulated to me an appreciation of the rights, prerogatives, and powers reserved to the States in our Federal system. In particular, Judge Gregory believes the States have broad powers to regulate and pass laws, and that unless the law is clearly repugnant and violates established constitutional principles, he believes the laws enacted by legislators should be upheld and respected by the courts.

Why would Allen credit Gregory’s boilerplate assertions? The most obvious answer is that Allen was already thinking about his re-election campaign six years later and that he wanted to defuse criticism of his record on race as governor of Virginia in the mid-1990s. Gregory was not only African American; he was also the longtime friend and law partner of Douglas Wilder, the first African American governor of Virginia and Allen’s immediate predecessor. Wilder and Gregory co-founded the law firm of Wilder & Gregory in 1982.

George Allen

Allen pushed hard for Bush to renominate Gregory after the Senate returned Clinton’s unconfirmed nominations, and he made it very difficult politically for Bush not to renominate him. So trying to make the best of the situation, Bush made Gregory the major attraction in his peace offering to Democrats. Both Allen and John Warner, the senior Republican senator from Virginia, attended Bush’s White House ceremony for his nominees, and Bush of course welcomed them by name.

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When Allen ran for re-election in 2006, whatever goodwill he had built on issues of race was destroyed in his infamous “Macaca moment.” At a campaign event in August, Allen called out a young man of Indian ancestry who was filming the event as a volunteer for Allen’s Democratic challenger Jim Webb:

This fellow here over here with the yellow shirt, Macaca, or whatever his name is. He’s with my opponent... Let's give a welcome to Macaca, here.

The word macaca, it was quickly determined, is Portuguese for the macaque monkey and was evidently a term that Allen picked up from his mother, whose family originated in Portugal. Whether or not the term is intrinsically racist or is, like monkey, innocently used to refer to someone engaged in mischief hardly mattered. The media elevated Allen’s “Macaca moment” into the defining event of the campaign: The Washington Post published 52 articles before Election Day that discussed or mentioned the incident. By contrast, a single article recalled Allen’s support for Gregory’s nomination.

With the support of former governor Wilder, Jim Webb eked out a victory over Allen by a very tiny margin, 0.39%.

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Instead of having his recess appointment expire near the end of 2001, Roger Gregory continues in service on the Fourth Circuit. He recently completed a seven-year term as its chief judge.

This is not the place to provide a comprehensive review of Gregory’s judicial record. Suffice it to say that he has been no judicial conservative and has instead been an aggressive judicial liberal. I’ll limit myself to two of many possible examples to illustrate the point: In 2014, Gregory provided the decisive vote in support of a ruling that Virginia’s laws defining marriage as a male-female union violated the Due Process and Equal Protection Clauses of the 14th Amendment. Just this April, in what Judge J. Harvie Wilkinson condemned in dissent as “imperial judging at its least defensible,” Gregory wrote the en banc majority opinion ruling that health-care plans in North Carolina and West Virginia that don’t cover surgical procedures and other medical treatments for gender dysphoria violate the Equal Protection Clause.

Over the past three decades, the Fourth Circuit has gone from being the most conservative federal court of appeals to having a strong claim to being the most liberal (yes, even surpassing the Ninth Circuit). As we shall see, George W. Bush suffered many failures in trying to fill seats on that court. But his success in appointing Gregory may well have been more damaging than all of those failures.

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Among the lessons to draw from this episode:

• Home-state senators will often have their own self-serving reasons for supporting bad judicial nominees. Especially when they are of the same party as the president, they can put the president in a difficult box.

• No naive deed goes unpunished.

• No Republican will ever win the goodwill of the liberal media.