Clinton Losing Fight for Black Judge

President Clinton has tried for seven years to appoint a black jurist to the conservative, all-white U.S. Court of Appeals in Richmond, Va., but none of his nominees has been given even a hearing in the Senate.

The struggle illustrates dramatically the conservative hold on power in parts of the South, legal activists said. Over the last decade, the U.S. 4th Circuit Court has gained a reputation as being on the cutting edge of conservative activism.

Last year, the president nominated North Carolina state Appeals Judge James A. Wynn Jr., a well-regarded moderate, to the 4th Circuit, which oversees federal cases in five Southern states from Maryland to South Carolina.

But Sen. Jesse Helms (R-N.C.) has blocked a hearing on Wynn’s nomination, even though there are four vacancies and no North Carolina representatives on the 15-member court.

Earlier, Clinton proposed Raleigh lawyer Charles Becton and federal District Judge James Beaty Jr. of Winston-Salem, but they too were vetoed by Helms, who has made clear that he is still angry that Senate Democrats stalled a nominee he favored in 1992.

Last week, the president tried to steer around Helms--who can prevent the Senate from considering any North Carolina judicial nominee--by sending the name of black Virginia attorney Roger L. Gregory to the Senate.

But Senate staff members said it is doubtful that his nomination will be processed before Clinton leaves office.

“The 4th Circuit has the largest African American population of any circuit in this country, yet it has never had an African American appellate judge,” Clinton said. “It’s long past time to right that wrong.”

Administration aides said they are frustrated by their inability to integrate the appeals court, generally regarded as the nation’s most conservative and the only one that has never had a minority judge.

While the public fight to remove the Confederate battle flag from atop the South Carolina state Capitol was symbolic of the region’s continuing racial divide, the behind-the-scenes struggle over the 4th Circuit has quietly been just as dramatic.

“It’s a shameful situation. How in this day and age in America can this gross inequality be allowed to continue?” asked Nan Aron, executive director of the Alliance for Justice, a coalition of civil rights and liberal advocacy groups.

Helms Downplays Court’s Importance

Under the Judiciary Committee’s rules, a single senator can privately veto a judicial nominee from his home state. North Carolina’s Democratic Sen. John Edwards championed Wynn’s nomination last year, but Helms has not budged.

Helms’ office did not return calls seeking comment on the issue, but in an interview last year with North Carolina newspapers, he downplayed the significance of the court.

“You go out on the street of Raleigh . . . and ask 100 people: ‘Do you give a damn who is on the 4th Circuit Court of Appeals? They’ll say: ‘What’s that?’ ” he said. “It matters only to politicians and newspaper editors.”

“In fairness to the Republicans, they don’t see this as a race issue but one of ideology,” said University of Massachusetts professor Sheldon Goldman, who studies judicial nominations. Senate Republicans have said that they want to prevent soft-on-crime liberal activists from winning lifetime seats on the federal bench.

Clinton’s effort to remake the 4th Circuit has been stalled but without much public debate.

During the 1980s, liberal activists loudly contested several of President Reagan’s nominees. For example, Indiana’s Daniel Manion was attacked as unqualified, but he won a close confirmation fight to join the U.S. Court of Appeals in Chicago. In 1987, Judge Robert H. Bork was challenged as too conservative, and his Supreme Court nomination was defeated.

Bar Group Did Not Evaluate Nominees

During the 1990s, conservative activists have quietly blocked a series of Clinton’s nominees to the lower courts but without an open debate on their views or qualifications. Because these nominees never were in line for a hearing in the Senate, they did not undergo the customary evaluation by the American Bar Assn.

But Professor Goldman said that Clinton’s nominees have been generally moderate. “They are less liberal than [President] Carter’s nominees. They tend to be people who were local prosecutors or corporate attorneys.”

In the North Carolina situation, Clinton’s aides in 1993 proposed Becton, the Raleigh lawyer, but they later decided against formally nominating him because his work as a defense lawyer was being used to brand him as soft on crime.

Clinton had nominated Beaty to the district bench, and Helms made no effort to block him. But when the president proposed to elevate him to the 4th Circuit, the senator refused to go along.

In 1997, the president renominated Beaty to the 4th Circuit, but his nomination died without a hearing.

However, he remains on the bench as a U.S. district judge.

Democratic staff members said that Judge Wynn could win confirmation easily in the Senate if his nomination were brought up for a vote.

“There’s no way they would go on record voting against this guy,” a Senate staffer said of the North Carolina jurist.

Wynn, 46, is a graduate of Marquette University Law School in Milwaukee and serves as a captain in the Naval Reserves.

In an interview, he said that he is honored to have been nominated but admitted that he has little hope of winning confirmation.

“I met with Sen. Helms, and he was very cordial. He said he had nothing against me but that J. Harvie Wilkinson [the chief judge of the 4th Circuit] told him he doesn’t need any more judges,” Wynn said.

Wilkinson, a soft-spoken and scholarly conservative who is based in Charlottesville, Va., has told the Senate that the appeals court would lose a sense of collegiality if it grew too large.

“I’ve also said we are on top of our docket,” Wilkinson said in a phone interview. “We are first in the country in the time of resolving our cases.”

Over the last decade, the judges on the 4th Circuit have insisted that racial favoritism has no place in public policy.

Based on that view, it struck down an affirmative action policy that had been adopted by the Richmond City Council. It also invalidated a Maryland state college scholarship program that was reserved for highly talented minority students.

Last year, the court barred school officials in the region from undertaking voluntary desegregation efforts.

Because these “magnet schools” considered the race of students as a factor in who was admitted, they are unconstitutional, the 4th Circuit said.

Earlier, it also blocked the Clinton administration’s effort to open the all-male Virginia Military Institute to women, a ruling eventually overturned by the Supreme Court.

This year, the 4th Circuit had a mixed record in the Supreme Court. Two of its major rulings were affirmed and two were reversed.

The tobacco industry had gone to the 4th Circuit to challenge the administration’s attempt to regulate cigarettes and won a ruling striking down the policy. The high court upheld that decision in March on a 5-4 vote.

The 4th Circuit also struck down the new federal law that gave victims of sexual assaults a right to sue their attackers. The Supreme Court upheld that ruling on a 5-4 vote.

Last year, the 4th Circuit had boldly overruled the Supreme Court’s Miranda decision that required police to warn suspects of their rights. On a 7-2 vote, the justices reversed that decision last week.

The 4th Circuit also struck down a federal law that prevented states from selling personal information from driver’s license files.

Unanimously, the Supreme Court reversed that ruling in January.

Rep. James E. Clyburn (D-S.C.), chairman of the Congressional Black Caucus, has made integration of the 4th Circuit Court his priority.

“The best way to deal with this is to highlight the issue. And I’m an optimist. Time is not on our side,” he said, because the Senate is expected to adjourn in October. “But I still think we can get it done.”