November 01, 2018 WAYMAKER

An Interview with Judge Roger L. Gregory

By Judge Willie J. Epps Jr.

Roger L. Gregory is the only person ever to be appointed to a federal appeals court by presidents of two different parties. On June 30, 2000, President Bill Clinton, a Democrat from Arkansas, nominated Gregory to fill a seat on the U.S. Court of Appeals for the Fourth Circuit. The U.S. Senate, however, refused to take up the nomination on the eve of the 2000 presidential election. So, following election day, the historic recount dispute in Florida, and Bush v. Gore, 531 U.S. 98 (2000), President Clinton placed Gregory on the court via recess appointment on December 27, 2000. That recess appointment was valid until the end of the next congressional session or about a year. Judge Gregory, however, was renominated by President George W. Bush, a Republican from Texas, on May 9, 2001, and confirmed by the Senate on July 20, 2001, in a 93-1 vote. Gregory is the first African American ever to serve on the U.S. Court of Appeals for the Fourth Circuit. He is also the first African American to serve as chief judge on that court.

Gregory was raised in Petersburg, Virginia. He graduated from Virginia State University in 1975 and from the University of Michigan Law School in 1978. He practiced law at two firms before forming the law firm Wilder & Gregory with L. Douglas Wilder in 1982. Less than a decade later, Wilder would be elected governor of the Commonwealth of Virginia, becoming the first African American to serve as governor of a U.S. state since Reconstruction and the first African American ever elected governor of a U.S. state.

Judge Gregory, what was it like growing up in Petersburg, Virginia? What did your parents do for a living? How was your experience at Petersburg High School?

Living in Petersburg inspired my lifelong love for Civil War history. Petersburg was the site of the longest siege in the history of American warfare—over 300 days. After Petersburg fell, the war ended a week later at Appomattox.

Growing up in Petersburg was a rich experience of family and friendship. Even though those were times of racial segregation, my parents and community gave me a beautiful affirmation of life and a true sense of who I was and what I could become.

I was adopted, but I didn’t know that until I started high school. I gained a deeper appreciation for my parents because of the fact that they chose me. They took me in and gave me so much love and support. They provided a solid grounding in faith, duty, and service. I was active in church and scouting and engaged in daily play with my friends. They gave me so much. My parents worked at a tobacco factory. My father worked there for 41 years, and you could count the number of days he missed work on one hand and still have fingers left. Both my father and my mother had such an incredible work ethic and an unfailing faith.

I went to segregated schools from the 1st through the 11th grades. I had a strong educational foundation. Mentors and teachers like Mr. Hairston, my history and government teacher, inspired me to strive for excellence. At Peabody High School, I played football one year and was in the drama club. I also participated in regional math/science conference competitions. I did not attend Petersburg High School until my senior year. I was in the first graduating class when there was just one public high school in Petersburg—black and white students together. I made many new friends. My senior-year counselor, Ms. Bailey, was so supportive. I had a wonderful senior year at Petersburg High School.

I wouldn’t trade anything for my childhood experiences growing up in Petersburg. It was a wonderful time to be a part of this growing idea of what America meant in my formation. I really liked having that experience.

How did you pick Virginia State University followed by Michigan Law School?

Virginia State is a historically black college in my hometown. And, to be quite frank, I didn’t want college to be a great financial burden on my parents. I could live at home and work during the summer breaks. My parents had given me so much, and I just wanted to make the costs lower. Many of my teachers had attended Virginia State, so I knew I would get a great education. It was the only college where I applied for admission. Dr. Calvin Miller, chair of the Political Science Department, awarded me a partial tuition scholarship.

Virginia State gave me opportunities to do things I would never have been able to do at any other school. I attended President Johnson’s Civil Rights Symposium at the University of Texas in 1972. I participated in Harvard’s National Model United Nations Competition my junior and senior years. Our team represented the interests of a West African nation both years. I presented my senior thesis at a conference for social and behavioral scientists in North Carolina. In my senior year, I met a woman in an African American literature class whom I married five years later.

My first connection to the University of Michigan came through Virginia State. The Political Science Department had a consortium with the Political Science Department at Michigan. Noted political science professors at Michigan came to Virginia State to lecture classes. That was my first experience with Michigan. I attended Michigan, one of the top-ranked law schools in the nation. I had outstanding law professors who were both excellent teachers and prolific scholars. I relish that experience. I was blessed to have a great education in the liberal arts and law.

What type of practice did you have following your passing the bar?

When I went to law school, I knew I wanted to be a lawyer but had no interest in tax. But I took professor L. Hart Wright’s corporate tax class. He was a principal drafter of the 1950 Internal Revenue Code. He was a phenomenal teacher. And that class inspired my interest in tax law. After law school, I was a tax lawyer at Butzel, Long, Gust, Klien & VanZile, a large corporate firm in Detroit.

I understand you then moved down to Hunton & Williams in Virginia. Why that move?

I practiced in the tax area for a while and then asked to work on a products liability case at the firm. I switched to litigation and never went back to the tax section. But growing up in Petersburg gave me roots, and I thought that one day I would return to Virginia. I believed the law could be a means to effect social change and justice. And I believed the South was where my greatest service could be. Also, my parents wanted me to come back to Virginia. I loved Detroit, and I still do. I’m still a member of the Michigan Bar.

I made inquiry with Hunton & Williams, one of the top law firms in the country and, at that time, the largest between Washington, D.C., and Atlanta. I interviewed with them, and they made me an offer. I became an associate attorney with them after a two-year stint with the firm in Detroit. So, that’s what made me come to Hunton & Williams. I worked for Lewis Booker at Hunton & Williams. He was an incredible lawyer. I worked on products liability and commercial litigation matters. It was a wonderful experience.

You did mainly products liability work, representing automotive manufacturers?

I worked at Hunton & Williams for a couple of years, but I wanted to have my own firm. And that opportunity came about, once again, through my Virginia State connections. L. Douglas Wilder taught me constitutional law and civil liberties as an adjunct professor. He inspired me in so many ways. I didn’t grow up around lawyers. I remember seeing court dates in his appointment book when he opened it to set due dates for class assignments. I said to myself, “Wow, it would be cool to be a lawyer.” In 1982, nearly 10 years later, we formed the law firm of Wilder & Gregory—just the two of us. It was really an incredible opportunity to work with such a brilliant lawyer and wonderful human being. It was truly a blessing to have him as a partner and mentor. I learned so much about being an effective trial lawyer. I tried criminal defense cases, drafted wills, and handled personal injury matters. I learned the full range of practicing law and what it meant to be a business owner. The firm expanded its practice to include defending national corporations in commercial and products liability litigation and working in the areas of public finance and commercial real estate. The firm grew to be the largest African American–owned firm in Virginia. It was quite an experience.

When did you decide you wanted to be a judge?

I must say that I had no interest in being a judge. I loved practicing law. I was trying jury cases and managing the firm. I loved it. When former Governor Wilder (elected in 1989) first recommended me to Senator Charles Robb to fill the vacancy on the Fourth Circuit, I didn’t want to leave my law practice. I went to India with the Christian Children’s Fund Board. When I returned, Governor Wilder, my mentor, said, “You should consider this; it is important.” I talked to my wife, Carla, and we decided to go forward. Senator Robb recommended me to President Clinton, with the support of Senator John Warner. I was pulled along by what I call the “rope of destiny”—one woven by generations before me and stained with their blood, sweat, and tears. I was pulled along a blessed and incredible journey. I owe so much to Governor Wilder; Senators Robb, Warner, and Allen; and others like Elaine Jones and Leslie Proll. And, of course, I owe so much gratitude to President Clinton for making the recess appointment and President George W. Bush for making the lifetime appointment. I had no goal to be a judge; I came to it by the grace of God.

Judge Gregory, you were the first African American to serve on what was then widely viewed as the most conservative of all the Federal Circuit Courts. What was it like for you joining the court via recess appointment?

When I was recess appointed to the court, it was incredible. My thoughts were a mixture of surrealism, idealism, and realism. All three came together and merged because I had never been a judge. I had to move along fast to make arrangements for the transition. I asked a state court judge to move up the date of a case I was scheduled to try. I tried that criminal case before a jury on my last day of practice. I always felt my clients came first.

I’d given up my law practice to take the judgeship. My wife, now deceased, was with me all the way. We decided that if I stayed for only a year, I wasn’t going back to my firm because it wouldn’t be fair to my partners. We were going to carve a new path. I didn’t know what that would be, but I didn’t have fear.

The briefs and records for my first assigned cases were delivered to my law firm. I was sworn in on January 18, 2001, two days before the inaugural. I had no law clerks. I was sitting alone in my chambers reading the correspondence among the judges on the court. It was the sort of experience in which I was there, but I wasn’t there. I was in a courthouse built in 1858 that once housed the treasury department of the Confederacy. Jefferson Davis had an office in the building.

The transition was smooth. My colleagues embraced me and were very kind. Although the recess appointment guaranteed me only a one-year term, my colleagues never treated me like a judge with an asterisk. I kept focus on my new assignment, determined to do my best while I was there; content to let the rest fall as it may. I always tell young people that you must have faith and believe that you can go forward no matter what the circumstances. Sometimes at night I walked the halls alone, but I was never lonely because so many supportive spirits and prayers were with me.

How do you get both a Democratic president and a Republican president to nominate you for a seat on the U.S. Court of Appeals?

[Laughter] Wow. I have to say, by the grace of God. After President Clinton nominated me for the judgeship, I went six months without having a hearing before the Judiciary Committee. President Clinton decided to make the recess appointment. I am grateful for the confidence the president placed in me. Also, several persons and organizations supported my recess appointment. It would not have happened without that support. It was not due to my effort. President Clinton mentioned me in his book My Life because he considered my recess appointment to be a notable achievement of his second term. As a matter of fact, I’m featured in an exhibit at his presidential library in Little Rock, Arkansas.

With the support of my senators, John Warner and George Allen, both Republicans, President Bush decided to consider me for the permanent judgeship position. I interviewed with Alberto Gonzales, White House Counsel, in the West Wing. President Bush nominated me for the lifetime judgeship. I am grateful to President Bush for the confidence he placed in me. When the vote on my nomination was before the full Senate, Senators Warner and Allen spoke on my behalf. Senator Allen, former governor of Virginia, had just been elected in November. His speech in support of my nomination was his first speech on the floor of the Senate. And he stood at the desk used by Jefferson Davis when he was in the Senate.

I am on the bench because of the bipartisan support of Virginia governors and senators: Governor/Senator Robb, Governor Wilder, Governor/Senator Allen, and Senator John Warner. President Clinton, a Democrat from Arkansas, and President Bush, a Republican from Texas, placed their confidence in a lawyer who grew up in Petersburg. So, that’s how it happened. Like I said, by the grace of God.

What bar associations are most important to you?

The Old Dominion Bar Association is among the oldest statewide associations of African American lawyers in the nation. I was fortunate to serve in many leadership roles with the ODBA. I was president from 1990 to 1992. It is very dear to me.

The National Bar Association, a national bar of African American lawyers, is also very dear to me. I was awarded the NBA’s prestigious Gertrude Rush and Equal Justice Awards. The NBA has been very supportive of me for many years.

I’ve been a member of the American Bar Association since 1979, when I was practicing law in Detroit. And it has given me some wonderful opportunities. My law firm was in the ABA minority counsel demonstration project that provided minority-owned firms an opportunity to develop relationships with several large corporations. My law firm greatly benefited from having exposure to a national client base. The ABA program started in 1988 with 20 law firms. I give special thanks to Dennis Archer and Robert Grey, both past presidents of the ABA, for making the program a success. It made all the difference in expanding our firm’s corporate practice. Since that time, I have served on the ABA’s Silver Gavel Awards, Standing Committee on Education, and the American Jury Commission. I was a presenter at the ABA’s Leon Jaworski Law Day program in Washington, D.C. I was the keynote speaker at the ABA’s 2005 Annual Meeting Opening Assembly in Chicago. I’ll never forget that moment: A little boy from Petersburg had an opportunity to speak to the best and brightest leaders of the bench and bar in the nation. The ABA has given me a wonderful opportunity to serve the legal profession and the public.

Higher education seems to be a passion of yours. Tell me why.

I think about my hard-working parents, neither of whom had much formal education. My mother worked in the dormitory of Virginia State University when she was 16 years old. My mother had wisdom and a sharp mind. I always think about what must have crossed her mind when cleaning up the rooms of young ladies in college. She didn’t curse the darkness. Instead, she lit a candle, and that candle was me. And years later I was able to attend that college. If my life has any luminous quality, my parents were the source of the light.

I always thought I needed to give back to higher education because so much was given to me. I taught constitutional law as an adjunct instructor at Virginia State. I also served on the Board of Visitors of Virginia State. I served on the Board of Visitors of Virginia Commonwealth University. I was the first and only African American to serve as Rector of the Board. I just finished my ninth and final year on the Board of Trustees of the University of Richmond. So, for many years I’ve been a part of governance at institutions of higher education. It really is a wonderful service to help young people reach their goals.

I think our nation needs to give more attention to higher education; it is one of our greatest expressions of hope. Some people have to have hope when everything around them says otherwise. I think a sound higher education is one of our best ways of enlightening and transforming the mind. If we can continue to support greater access to institutions of higher education, we can make our nation and the world better.

Professor Trevor Roper said the true function of genius is not to give new answers, but to pose new questions that time and mediocrity can resolve. Sometimes it takes time and mediocre minds to figure out how we can work together to promote the progress and dignity of all people regardless of color, ethnicity, nationality, religion, sex, gender, or sexual preference. It happens when we take the journey toward understanding and healing.

What do you like about serving as a judge? And do you think experience as a trial judge can be beneficial for an appellate judge?

What I love the most is working with wonderful colleagues on the court. When you write an opinion, it gets scrutinized by some incredibly bright minds. I love that because it reminds me of the competitive aspect of being a trial lawyer. Now my only client is the law. I love the collegial engagement. I love the written banter. I also love the solitude of the job—the research and the writing and taking the long look and making hard decisions about difficult matters.

And I love my law clerks. I have 70 former law clerks now, and they are just wonderful. These bright, young people, the crème de la crème, keep me on the cutting edge of all kinds of technologies and different social and cultural perspectives. I love it.

I think being a trial judge gives you a rich perspective and foundation for being an appellate judge. I was never a trial judge, but I was a litigator with a lot of experience in court. It enhances your insights when you have experienced first-hand the dynamics of a law practice, and presented evidence and examined witnesses in court. I’m a lawyer’s judge. I mean, I like the hot bench. The lawyers have to be respectful, but I like the back- and-forth exchange with appellate counsel. You can’t tell how I’m going to rule based on my questions. I may ask the side that appears to have the better argument more probing questions because I want to test the legal soundness and precedential impact of my tentative views.

Is there an opinion or dissent through the years that stands out for you?

I was on the Moussaoui case, which involved criminal charges related to the September 11 attack at the World Trade Center. I had to deal with classified documents and complex legal issues in making pretrial and appellate rulings. Another case that comes to mind involved a constitutional issue related to limitations on campaign financing in which I dissented. The case was appealed to the U.S. Supreme Court and the Fourth Circuit was reversed. The Supreme Court opinion mentioned me by name, something that rarely occurs. Justice David Souter said, “as Judge Gregory rightly stated.” I loved it. [Laughter]

I’ve had some incredible cases. As the old saying goes, you are blessed to live in interesting times. I give cases my all because every person or entity that comes before the court is entitled to equal justice under the law. I take that very seriously.

You were married to Mrs. Carla L. Gregory for 29 years before she died of cancer. What impact does your first wife’s death have on you and your service on the bench? What did she think of your becoming a judge? And, finally, I understand you have remarried, correct?

Well, we met in 1975 at Virginia State. We almost missed each other because she was a sophomore and I was a senior. My last semester, we took a literature class at night, and after class we would talk. I graduated and went to Michigan, and she later came to Michigan and got her master’s in Library Science. So, we both graduated from Virginia State and Michigan. We married in 1980. She headed the research library for corporations most of her professional career.

Carla was my heart and inspiration. She was really beside me all along the way—and sometimes in front of me. In regard to going on the court, it wouldn’t have happened without her encouragement and support. Her struggle made me understand that you can get through a lot of things in life if you don’t have to go through them alone. Compassion and companionship make a big difference. She was diagnosed with brain cancer in ’07, and had a 22-month journey with a tough health challenge. But it was an incredible journey of faith and strength. If I was half the person she was, I’d be a better person. She had brain cancer, yet she had a spirit of hope and love. She inspired me and others. She never questioned God. We never talked about death; we talked about life. She enriched my life with joy and gratitude. I am more mindful that life is very precious and time is fleeting.

The service we give makes the difference. As a judge, I’m a public servant, and I put the emphasis on servant. If the people lose faith in the justice system, courts would have no true authority. So, we have to respect that trust and be transparent in our proceedings and respectful of all the people who come before us.

Carla once said to me, “Roger, you’re a great and generous person, but you don’t share. You must share.” I said, “What do you mean I don’t share?” I resisted, but I heard that sage advice. There’s a difference between giving someone something and sharing it with them. I never forgot that lesson she taught me. That’s what the rule of law means; it’s about sharing the blessings of equality and justice with all. It is not mere generosity because our Constitution requires no less from our legal system. She taught me things in life that I am reminded of daily. This week was the anniversary of her death, June 6. I think of her often.

I’m now blessed with a loving wife, Velda. We will be married three years in November. She is wonderful. She has three sons, and I have three daughters. And we have six grandkids. I’ve been very, very fortunate to find love again. It makes all the hard work—reading briefs and pouring over records—more fulfilling because I have someone with whom I can share my life and love. That’s what it really means when Reinhold Niebuhr said that we’re saved by love. I’ve been blessed to have that in measures more abundant than I deserve.

Among those three daughters and your grandchildren, any lawyers or judges in the bunch?

No, no lawyers. My oldest daughter works for the state retirement system. My middle daughter is a managing editor at a publishing company. And my youngest daughter is an accountant. So, no lawyers in the bunch. I’m very, very proud of them.

Who is your favorite judge and why?

You mean past or present?

You tell me. You’re the circuit court judge.

Oh, okay. Well, no question about it, in terms of the past, it would be Thurgood Marshall. I had the good fortune to meet him. His courageous work as a lawyer for equal justice in America is unparalleled. His relentless advocacy tore down walls of injustice and opened doors to equality. His work as a judge was a continuation of his dogged determination to ensure that this nation fulfilled the mandate of the Constitution—to establish equal justice under the law for all.

You have won dozens of awards. Which one is most special to you?

Wow, that’s a good one. Recently, I received the Washington Bar Association’s Charles Hamilton Houston Medallion. That was really an awesome and humbling moment. Houston was the architect of the brilliant blueprint for using litigation to overturn Plessy. And he trained the lawyers at Howard University Law School who engineered the work. It was such an honor to receive that award. I can only hope that one day I will come close to being a worthy recipient.

But the greatest award I ever received was from my father on the day he died. During my last visit with him at the hospital, the conversation somehow turned morbid. I remember turning away from him because I didn’t want to face my fear of finality. He told me, “You’ve been a great son.” When he spoke those words, no award could ever top that!

Well, Judge, I really thank you for your time. I know how busy you are.

Hey, thank you. 

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Judge Willie J. Epps Jr.

Willie J. Epps Jr. is a U.S. Magistrate Judge for the Western District of Missouri and sits in Jefferson City. He recently was appointed to the Executive Committee of the National Conference of Federal Trial Judges.