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Part 2

The Judge is Waiting


After two years with Hunton & Williams, working mostly on corporate litigation, Gregory was eager to try something new. One day near the Capitol, he happened to run into Wilder, who had taught him political science when he was a student at VSU.

Gregory "wanted to get out and practice law with the people," Wilder recalls. "And I was in the process of relocating and forming another law office and firm. I said, 'Hmm, let's chat,' and from that chat, we formed the firm."

There was chemistry, Wilder says: "We've never, ever had the slightest disagreement, cross words or disruption at any time during the entire period of our association. I can't say that about too many other things that I've been associated with."

After starting the firm with Wilder in a Church Hill office in 1982, Gregory became managing partner and took it over two years later when Wilder left to pursue a political career. He practiced all kinds of law, for all kinds of people, as a sort of Renaissance man, Wilder says. "And he knows who's left out and locked out" of the system.

But he certainly worked within that system. "He was a stickler for the observation of the rule of the law, as well as the technical nature of the law," Wilder says. "Judges knew if he made a point, it was a serious point. He knew when to cross-examine, when not to."

Gregory also established himself through a laundry list of community affairs: rector of Virginia Commonwealth University, a member of VSU's board of visitors, president of the Friends Association for Children, president of the Old Dominion Bar Association and board member of the Christian Children's Fund. In 1997, he received the Humanitarian Award from the National Conference of Christians and Jews. And he has been working as a member of the executive committee of Richmond Renaissance, which promotes downtown revitalization.

As he grew his practice and gathered steam as a leader in Richmond, Gregory made it known that he would be interested in becoming a federal judge.

"I guess some of us thought it might work out that way regarding a U.S. District Court seat," Chambliss says.

But the timing wasn't right. There were limited seats, there were other candidates, there was a layer of politics, and there were four other states — Maryland, West Virginia, North Carolina and South Carolina — in competition for vacancies.

In 1986, James R. Spencer, a black lawyer working for the U.S. Attorney's Office, had been appointed to a seat on U.S. District Court, under the 4th Circuit. "Judge Spencer sort of came out of nowhere," Chambliss says, "and at a time when Roger really wasn't interested in making a move."

Chambliss and many members of the Old Dominion Bar figured they were in for a long wait before another black attorney landed a judgeship.

"Suffice it to say, we didn't think another federal district court seat would be easy to get once Spencer was on the bench," Chambliss says. "What's the likelihood that in Virginia, you're going to get two or three African-American federal district court judges? Give me a break. It's tough. There just aren't that many of them."

"There goes your seat," fellow Old Dominion Bar members would tease him: "Guess you'd better go on and develop this firm," they'd say, "because you might have missed your shot." Gregory seemed unbothered by the jibes.

But as the years went by, with no more appointments and political stalemates, the subject of a judgeship became less of a laughing matter. Then, last summer, Sen. Charles S. Robb recommended Gregory for the decade-long vacancy on the 4th Circuit.

Many Republicans accused Robb of playing politics, of trying to curry favor with black voters during an election year. (Robb lost to former Gov. George Allen in November.) But Gregory's supporters didn't care what Robb's motives were.

The process leading up to nomination of a federal judge is shrouded in secrecy. Lawyers who know the nominee are confidentially interviewed by Justice Department officials and representatives from the American Bar Association. Word gets around. Calls are made. Many local attorneys learned of Gregory's approaching nomination before Gregory did.

On June 30, Clinton announced Gregory's nomination. Republican Sen. John W. Warner called him to offer congratulations.

And then the Senate … did nothing.

Brooks, of Hunton & Williams, ran into Gregory in court, and asked how he could help. He ended up collecting signed statements of support from attorneys in the firm, and passed them to Gregory. They hoped — and expected — it would help, he says: "It's sort of a peer review, if you will. I've always felt that's especially significant."

(Stephen Salpukas / Style Weekly)Lewis T. Booker, who mentored Gregory at Hunton & Williams, is close friends with the new judge, and serves with him on the board of the Christian Children's Fund. But time ran out, the Senate recessed and Gregory's chances dimmed. A few months later, in December, Clinton made the recess appointment — a maneuver that hadn't been made in 20 years — and sparked some surprise.

For all the controversy, though, Gregory's new role on the 4th Circuit may not create the kind of judicial shakeup that conventional wisdom would expect.

True, Gregory's sudden shattering of the 4th Circuit's decades-long, all-white makeup is astounding. Add to that the court's famously conservative reputation and it would seem logical to conclude that Gregory's presence will create a dramatic shift.

But that's not the case, according to legal scholars and some of Gregory's friends and associates.

"As a matter of substance, it's an incremental change," says John Douglass, an associate professor of law at the University of Richmond's T.C. Williams School of Law. "As a matter of history, it's a watershed."

Any philosophical changes that Gregory may potentially bring to the bench will come gradually, they say, and must be separated from the sheer symbolic change he will represent to the residents of the court's jurisdiction.

Gregory's friend Lewis T. Booker, who served as his mentor at Hunton & Williams, says the addition of an African-American to the 4th Circuit will affect public perception rather than the operation of the court.

"I think that the 4th Circuit is well-administered, it's well-run, it hands down lucid, pertinent decisions," Booker says. "But I think that it's always good for the people to think that everyone is being fully represented on the court. And I think that having Roger there will make it clear that all citizens are going to get equal treatment."

Gregory's presence will promote and enhance perceptions of justice, Wilder says. But any changes will be less like a tidal wave and more like a steady stream of water smoothing stones. In administering justice, Wilder predicts, Gregory will combine competence, care and concern: "And that in and of itself will effectuate its results over a period of time. His being there is an effort to enhance the court's ability to appreciate more of the concerns of those who come before it."

Those concerns have intensified during recent years among some activist groups and some attorneys, who complain that the once liberal-leaning 4th Circuit has gone too far in the other direction.

The most repeated criticism is the court's reviewing of death-penalty appeals. From 1973 to 1995, the court granted new trials or sentences in 7 percent of cases, according to a Columbia University study. Other federal appeals courts came in at an average 42 percent. And the 4th Circuit astonished the legal world last year when it ruled that Miranda warnings were not constitutional under a 1968 law. (The Supreme Court reversed that decision.)

But many court observers argue that the 4th Circuit is not extreme; rather, they say, it is on the same wavelength as the Supreme Court. Last year, for example, the high court reversed 55 percent of the 4th Circuit's decisions — a lower rate than three other circuits. And in areas of First Amendment law, says UR law professor Rodney A. Smolla, "the court's decisions are well within the mainstream of other courts in the United States."

Many people shudder at labeling a court's philosophy in the first place, saying it depends on the individual issue. One of those people is Booker. Take some states' rights and personal-injury award cases for example, he says. There, the court could even be considered liberal.

But no matter; observers say the best gauge of Gregory's future judicial performance, considering he would be appointed for life, will not be his skin color — the main reason he has made headlines is for being appointed.

"It won't be his race," Smolla says, "it will be how his jurisprudence evolves as he begins to decide cases over the next several years. And it will take a number of years before the patterns of his decisions will be clear."

As far as an upheaval, Gregory's supporters say, there just won't be one. And that's OK. They expect him to deliver fair, well-thought decisions. While his race will make a huge difference in the way the court is perceived, they say, Gregory's ultimate judicial contribution will be his skills, life experiences and personal traits.

Today, Sens. Warner and Allen back Gregory. And the pressure is on for President George W. Bush to show support, too. Earlier this month, 31 members of the Congressional Black Caucus discussed Gregory and his judgeship with Bush during a meeting at the White House. Bush hasn't made a commitment.

"I think it's a wonderful opportunity for the president to show some of the things that he has said he's stood for," says Booker, a lifelong Democrat.

And most of Gregory's supporters believe he has a strong chance at confirmation. For one thing, they argue, he's already on the bench.

Gregory has broken his public silence just once. After his swearing-in, in a speech lasting only a few minutes, he said: "This oath that I take, I am mindful it is a blessing and an obligation. Today I set my feet on that path to follow that solemn charge."

After he spoke, Chief Judge Wilkinson ended the ceremony by echoing the way he, his colleagues and their predecessors have long ended courtroom debates: He stepped down from the bench and shook Gregory's hand.

"I look forward to sitting with you," he told Gregory, "for a long time."

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