Roger Gregory headed a minority law firm in Richmond, VA. His partner was Douglas Wilder, an influential Democrat who served as Virginia's first black governor. The Gregory nomination originally made on 6/30/00 was so lacking in support that it never merited even a Senate Judiciary Committee hearing, despite the fact that the very cooperative GOP-controlled Senate approved 373 of Clinton's other nominees and rejected only one. Not to be denied, Clinton then appointed Gregory to the 4^th Circuit on 12/27/00 without any Senate action, under the guise of a "recess appointment." A typical "Clintonesque" action, the Gregory appointment was clearly unconstitutional because the Constitution permits such recess appointments only to vacancies which occur during the recess of the Senate. Gregory's seat had never been filled since its creation in 1990; thus, the vacancy on his seat occurred in 1990. Indeed, there is some question — which still needs to be addressed — as to whether the seat needs to be filled at this time.

Gregory's "recess appointment" lasts only through 2001, so Clinton renominated him and eight other earlier nominees just before Clinton's term ended in January. While Mr. Bush has withdrawn these nine nominees, there is the possibility that he may renominate Gregory, giving him a lifetime seat on this extremely powerful Court of Appeals (generally the most conservative of all the thirteen Courts of Appeals). The question heard most often in Washington is, why shouldn't Gregory be permanently appointed? But this is the WRONG QUESTION. The RIGHT QUESTION regarding any judicial nominee is WHY SHOULD he/she be named to such a vitally important position of public trust? This question is a particular concern in regard to the Gregory nomination for the following reasons:

1. Mr. Gregory's "recess appointment" by Mr. Clinton on 12/27/00 was clearly unconstitutional; it was not a bona fide recess appointment within the limits of the U. S. Constitution, Art. II, § 2, cl. 3. Surely Mr. Gregory knew that his appointment was not constitutional, yet he assumed that post by taking an oath in which he promised to support the Constitution. What does this say about Mr. Gregory's respect for the Constitution? his attitude toward judicial restraint? his fitness for judicial office?

2. Despite our extensive research into Mr. Gregory's background, we find no record of his having any prior judicial experience and broad involvement in federal law that would justify his appointment to a federal circuit seat. Have we missed some probative feature that would provide this missing justification?

3. Likewise, we have found no evidence that Mr. Gregory possesses a commitment to judicial restraint which you and we both consider basic to excellence in judging. Again, have we missed something?

4. Why was Mr. Gregory nominated and then "appointed" by Mr. Clinton? The only answer we have discovered to that question is in an informative article which appeared in the New York Times on 9/28/00. The article can be summarized in one of its own sentences: "The Gregory nomination had a strongly political flavor since [Sen. Charles] Robb sent the lawyer's name to the White House in the thick of his fight for a third term." Surely, pursuing such tactics to promote the re-election of a Democrat Senator is not adequate grounds for a top federal judicial appointment under this Administration.

5. It is argued that racial diversity is a valid ground for appointment to the federal bench. If that be true, why not seek an African-American nominee with a distinguished background in judging and in federal law and a demonstrated commitment to judicial restraint, a nominee whom we would welcome?

Excellence in judging is as critical to America as the excellence in education which Pres. Bush is emphasizing. He has repeatedly set forth standards of excellence for his judicial nominees: a record of distinguished qualifications and a demonstrated commitment to judicial restraint. THAT STANDARD MUST BE OBSERVED. The Gregory renomination is an urgent matter.

Therefore, Court Watch urges you to IMMEDIATE ACTION:

APPLAUD the Bush Administration for withdrawing all nine Clinton nominations and for ending the ABA's power over judicial nominations; APPEAL to the Administration NOT to renominate Roger Gregory unless conclusive evidence is forthcoming that the nominee does indeed clear the high bar of excellence in judging.