Federal Appeals Court Under Fire

It’s one of the most influential and conservative courts in the nation — and all the judges are white. Josh Gerstein reports on the battle over the Fourth Circuit Court of Appeals.

By Josh Gerstein ABCNEWS.com WASHINGTON, July 16

— Eleven men and two women sit on the U.S. Court of Appeals for the Fourth Circuit. All of them are white.

That’s a fact some find particularly disturbing because more African-Americans live in the states of the fourth circuit than in any other circuit.

President Clinton has tried three times to install a black judge on the court. None of the attempts has been successful.

James Wynn, a moderate state court judge from North Carolina, is the latest nominee to get bogged down in the Senate. He has been waiting almost a year for a hearing.

“Quite honestly, it does not look like I’m going to get a hearing at least anytime in the near future,” Wynn said in an interview.

Who’s to Blame?

North Carolina Senator Jesse Helms (R) has blocked Wynn’s confirmation by preventing a hearing on his nomination. Under Senate rules, Helms must consent to the nomination of any judge from his state. Helms has refused to clear Wynn’s nomination and that of every other North Carolina resident Clinton has proposed for the appeals court.

Speaking to the NAACP in Baltimore last Thursday, Clinton blasted Helms for obstructing the nomination process.

“For over seven years now, he has stopped my attempts to integrate the Fourth Circuit Court of Appeals,” the president said. “This is outrageous.”

Sen. Helms declined to be interviewed, but his staff denied any racial bias. They say the Senator simply agrees with the court’s chief judge, J. Harvie Wilkinson III, that the panel’s workload doesn’t require any more judges.

In 1997, Wilkinson testified that confirming new judges to the court could hurt its deliberations. “Growth threatens to turn courts into bureaucracies and to destroy the humane values that inhere in collegial decision-making,” he said. Wilkinson also declined to be interviewed for this story.

For some in Congress, the talk of needing to preserve collegiality smacks of racism. “There is an effort on the part of the chief judge of this circuit and Senator Helms to keep this court not just conservative but all white,” Rep. James Clyburn (D-SC), Chair of the Congressional Black Caucus, told ABCNEWS. “It’s not just about conservatism with these guys. It’s about race.”

Sen. Jeff Sessions (R-Ala.), a member of the Senate Judiciary Committee, said it’s the president who is injecting race into the debate about the judicial nominations.

“This is a political season. He’s appearing before political groups and I think he’s trying to play the race card and that is bad,” Sessions said.

Sessions defended the delays as necessary because of the irrevocable nature of a federal judgeship. “Once they are confirmed they’re there for their life, so we have a responsibility to look at those nominees carefully, Sessions said. “If they’re controversial, sometimes it takes a while to work through the system,” he added.

Political Payback

Some political observers say that for Helms, the dispute also involves an element of political payback. Almost nine years ago, President Bush nominated North Carolina lawyer Terrence Boyle to a seat on the same court. Boyle once worked on Helms’ Senate staff and is the son-in-law of Tom Ellis, a Raleigh attorney who ran Helms’ first Senate campaign. (Ellis has received press attention for his ties to a New York foundation promoting research aimed at promoting theories that whites are genetically superior to blacks.)

Democrats denied Boyle a hearing and he was never confirmed to the appeals court. Helms was steamed.

In 1995, the Associated Press asked Helms why he was blocking Clinton’s efforts to nominate Raleigh lawyer Charles Becton to the appeals court.

“We want some redress for the mistreatment of our nominee by the Democrats,” Helms said, referring to Boyle. “I don’t know why the Democrats expect any different.”

Helms’ supporters note that one of the four appeals court nominees he has blocked, J. Rich Leonard, is white. Helms agreed to allow Leonard’s confirmation to a district court post.

Helms has done more than just block the president’s nominees to the fourth circuit. Again following the lead of Chief Judge Wilkinson, Helms has proposed legislation that would actually eliminate two of the court’s 15 permanent seats.

In an effort to make an end-run around Sen. Helms, President Clinton is now trying to get an African-American lawyer from Virginia onto the appeals court. In late June, Clinton nominated Richmond attorney Roger Gregory to the bench.

Sen. John Warner (R-Va.) declared last week that he will support Gregory. In a letter to Senate Judiciary Committee Chairman Orrin Hatch, Warner said Gregory “is a well-qualified nominee who would serve as an excellent jurist.” But Warner also observed that the nomination was made “very near to the end of the Congressional session.”

Resolution Unlikely Before Next Year

Congressional staffers say Gregory’s chances of being confirmed this year are slim. As a presidential election approaches, the Senate’s confirmation process often slows down. Observers expect a few more district court nominees to be confirmed before November, but it is unclear whether Senators will choose to bestow a lifetime appointment to a circuit court judge just as the president leaves office.

Clinton has also described as “a travesty of justice” the Senate’s treatment of Enrique Moreno, a lawyer he nominated to the fifth circuit more than three and a half years ago. Moreno has yet to receive a hearing because his nomination has been blocked by the two Republican Senators from Texas. Speaking to union workers last month, Clinton complained that Texas Gov. George W. Bush has done nothing to encourage Senate action on Moreno.

“He didn’t say a word. There was no Spanish-speaking plea for Enrique Moreno, because he isn’t part of their America,” Clinton said.

Helms and other Republicans who are preventing action on Clinton nominees may also have been emboldened by a decision the president made in 1998. Clinton agreed to nominate Washington state conservative Barbara Durham to the ninth circuit appeals court in exchange for Senate confirmation of several his own appointees. Liberal critics called the deal “a Faustian bargain.” Durham later became ill and withdrew from consideration.