PRESIDENT BUSH'S regrettable move to renominate the most controversial of his judicial nominees means the Senate soon will have to deal with several troubling cases. The first three appeals court candidates examined by the Senate Judiciary Committee this year all present serious, though very different, concerns. One, William G. Myers for the U.S. Court of Appeals for the 9th Circuit, should be voted down on the merits. The second, Terrence W. Boyle for the 4th Circuit, should not be confirmed based on the current record. The third, Thomas B. Griffith for the D.C. Circuit, falls on the other side of the line.
Mr. Myers's long career of anti-environmental activism makes him unusually ill-suited for service on a circuit court that serves several large western states. A longtime lobbyist for grazing and mining interests, he spent years staking out extreme positions concerning the constitutional constraints on environmental law. Until his nomination, he never bothered to conceal his hostility toward environmental values or their enforcement through federal law. In a 1998 article he complained that environmentalists are "mountain biking to the courthouse as never before, bent on stopping human activity wherever it may promote health, safety, and welfare." After he became the Interior Department's chief lawyer in 2001, he embraced a series of indefensible legal positions that put the government behind the industries he previously represented. In one instance, he helped clear the way for a mining company to damage land sacred to an Indian tribe; in another, he got the Justice Department to file a brief on behalf of a kitty litter company that wanted to avoid local regulation of a processing plant. Nothing in Mr. Myers's career offers hope that he would become a dispassionate legal analyst on the bench.
A closer case is that of Judge Boyle, who has served for many years as a district court judge in North Carolina. Judge Boyle, whose elevation was demanded over many years as part of an extortionate campaign by former senator Jesse Helms (R), has written some impressive opinions. He has also written some terrible ones, particularly on civil rights. His rulings have been overturned on appeal at an apparently high rate, and in some instances he seems to have ignored well-established precedents. For example, he appeared to rule in one case that constitutional immunity for states from lawsuits protects them from race discrimination lawsuits brought by employees despite a clear Supreme Court ruling to the contrary -- though he said at his recent hearing that the court that reversed him misunderstood his ruling. What isn't clear at this stage is how representative Judge Boyle's worst opinions are: whether they are occasional lapses or indicative of a legal mind-set in which states' rights trump federal civil rights protections. For this reason, senators are right to ask to see his unpublished opinions, which Judge Boyle has promised to provide. Unless those can assuage the concerns raised by the rest of his record, he, too, should be rejected.
Mr. Griffith presents the most difficult case, because he has practiced law without a valid license in two separate jurisdictions for considerable periods. In 1998 he inadvertently let his membership in the D.C. Bar lapse by not paying dues. The oversight was innocent enough, but he did not correct it for three years, by which time he was general counsel of Brigham Young University in Utah. He failed to join the bar there, too, even after receiving a stern warning to do so. Mr. Griffith argues that he does not need a Utah license so long as he closely associates with Utah lawyers in his legal work -- a point the Utah Bar now appears to accept.
Republicans have trivialized his lapses; we do not. They are serious. But in the context of an otherwise honorable career, the infractions do not seem disqualifying. As Senate legal counsel during the impeachment trial of President Bill Clinton, Mr. Griffith was widely respected by people in both parties, and those who have worked with him elsewhere regard him as a sober lawyer with an open mind. There is considerable reason to think he would make a fine judge.