A Very Questionable Nomination

[Gene C. Gerard]

The Senate will soon vote on the nomination of Terrence Boyle to the U.S. Court of Appeals for the Fourth Circuit. President Bush nominated Mr. Boyle, who has served as a federal district court judge in North Carolina for the last 20 years, in 2001. But Democrats have blocked his nomination since that time, owing to his poor judicial record. Senate Majority Leader Bill Frist has recently said that he will force a vote on Judge Boyle, even if it requires triggering the so-called “nuclear option” of abolishing the longstanding tradition of the filibuster. But a new report revealed that Judge Boyle has repeatedly ruled on litigation in which he had a financial interest.

A review of Judge Boyle’s judicial record suggests that he has a racial bias when it comes to Congressional redistricting. In Cromartie v. Hunt, Judge Boyle sided with white voters who alleged that their district had been illegally drawn to create a black majority district. But the Supreme Court unanimously reversed his ruling. In another case, Judge Boyle issued a ruling in favor of white voters in a lawsuit that wasn’t even assigned to his court. An appeals court rejected this ruling.

He also has disdain for protections against sexual and racial discrimination. After North Carolina was found guilty of discriminating against women employed or seeking employment as correctional officers, Judge Boyle refused to consider a settlement agreement on the grounds that North Carolina’s “culture” was different from the rest of the nation. An appeals court ruled that in doing so, Judge Boyle committed an “abuse of discretion.” And in Ellis v. North Carolina, he rejected a lawsuit on the grounds that North Carolina was not subject to the Civil Rights Act of 1964. Not surprisingly, both an appeals court and the Supreme Court rejected this position.

Judge Boyle also appears to have contempt for the disabled. In lawsuits in 1998 and again in 2001 he argued that the Americans with Disabilities Act (ADA) gives the disabled “special treatment” instead of merely equal treatment, and is therefore unlawful. He has also argued that Congress did not have the Constitutional authority to approve the ADA, despite rulings to the contrary by the Supreme Court. And an appeals court severely criticized Judge Boyle for insisting that employment for the disabled was not a “major life activity.”

Equally disconcerting is that an appeals court has reversed a high proportion of his rulings. Approximately 12 percent of Judge Boyle’s rulings have been overturned, which is twice as high as any other federal district court judge nominated by President Bush. The Fourth Circuit Court of Appeals has found that his rulings have threatened the “fairness, integrity or public reputation of judicial proceedings.” Perhaps this explains why the American Bar Association gave Judge Boyle its lowest approval rating of any district court judge nominated by President Bush.

Salon.Com is now reporting on an investigation that has uncovered that since his nomination five years ago, Judge Boyle has seemingly violated federal law prohibiting conflicts of interest by ruling on nine cases in which he had a financial stake. The Code of Conduct for U.S. judges specifically prohibits them from serving on cases where they have a financial conflict of interests. And a judge is required to “inform himself about his personal and fiduciary financial interests” in order to avoid financial conflicts of interests under federal law.

In 2001 Judge Boyle gave a written statement to the Senate in which he affirmed, “I will avoid any conflict of interest, potential conflict of interest, or appearance of conflict of interest. I am disqualified from presiding over, or being involved with, any litigation involving any party with whom I might have any financial interests.” Yet at the time he was issuing rulings in favor of Quintiles Transnational, a pharmaceutical services company in which he owned stock. A year later, he ruled in a case involving America Online, despite owning stock in AOL Time Warner, the parent corporation of America Online.

In 2002 he ruled in favor of Midway Airlines, a company in chapter 11 bankruptcy. If the airline had come out of bankruptcy favorably, its stock would have been worth more. Judge Boyle owned stock in the company when he ruled that the North Carolina labor department couldn’t sue Midway in state court for money owed its workers. In 2004 Judge Boyle bought stock in General Electric, despite the fact that he had been presiding over a lawsuit against it since 2002. Two months after purchasing the stock, he ruled that General Electric did not illegally deny disability benefits to a former employee.

Despite all these failings, President Bush is sticking with his nomination. A White House spokesman late last month stated that Judge Boyle has a “distinguished record” and should be confirmed immediately. It’s difficult to understand how his record could conceivably be regarded as distinguished. Senate Majority Leader Bill Frist recently stated that Judge Boyle needs to be confirmed because, “We need judges on our courts who are qualified, who demonstrate the highest integrity and will respect the rule of law and the Constitution.” If he truly believes that, Senator Frist should insist that the president rescind Judge Boyle’s nomination.

[hobbit709]

1. “distinguished record”

To the WH being corrupt IS a “distinguished record”.

[BR_Parkway]

2. Nuclear option - months before they lose Congress - yeah, right

I'm pretty sure even they aren't that stupid.

[depakid]

6. It's a smart move because

He figures the Dems are likely to cave AGAIN and end up looking weak. If they don't, Bush can just use a recess appoinment-.

My question is- why hasn't this man been impeached?

[genieroze]

3. Sounds like a typical * appointee.

[mom cat]

4. Welcome to DU and to the Greatest Page: K&R

:hi:

[Mr_Spock]

5. Another excellent post - glad you brought this to a larger audience

I'd heard about this nomination on the radio, but I wasn't familiar with the gory details. Thanks for bringing this to our attention!

[struggle4progress]

7. Filibuster isn't just a tradition: it's protected by Senate rule, which

.. itself is explicitly protected from change by a simple majority.

Senate Rule XXII

.. 2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of ..

http://rules.senate.gov/senaterules/rule22.php

<edit: clarity>

[struggle4progress]

8. " .. To amend Rule XXII without allowing these provisions to take ..

.. effect would constitute the first time in the history of the Senate that the Senate amended a rule not in accordance with the Senate's own rules .."

Testimony of Michael J. Gerhardt, Arthur B. Hanson Professor of Law, William & Mary Law School
Before the Committee on Rules and Administration, United States Senate
June 5, 2003
http://rules.senate.gov/hearings/2003/060503Gerhardt.htm

[nealmhughes]

9. Latest Nomination Fiasco

I honestly do not know why this man would be allowed to continue as any type of judge. He should have been impeached long ago.
If Frist thinks he can change the Senate rules by a 51:50 vote (which would be required to change the existing cloture rules which are obviously now at 2/3) then he has a very long hard fight ahead of him. I honestly doubt he can get 50 votes plus Cheney. There is no way Lincoln Chafee would agree, and most probably a few other ones like Snow and Collins. To try this would be his political death knell. Good riddance, CatMan.