By Charles Lane
Washington Post Staff Writer
Thursday, May 12, 2005
The Senate Judiciary Committee's schedule says today is the day for a vote on President Bush's nomination of Terrence W. Boyle to the U.S. Court of Appeals for the 4th Circuit.
Then again, the Republican-controlled committee may put it off to deal with other judicial nominees and unrelated business; it has done so twice this year already.
And so it goes in Boyle's bid for a seat on the federal appellate bench -- a nearly 15-year saga whose end is nowhere in sight.
Boyle, a favorite of former senator Jesse Helms (R-N.C.), has been a controversial candidate ever since President George H.W. Bush tried and failed in 1991 to put him on the Richmond-based 4th Circuit.
Democrats say he is an ultra-conservative who is hostile to civil rights and has been frequently overruled on appeal; they have not ruled out a filibuster against him if he is approved by the Judiciary Committee. Republicans call him a fair-minded judge and tout his "well-qualified" rating from the American Bar Association.
But the debate has gone far beyond his qualifications or philosophy. Over the years, it has become an argument over race, politics and plain old partisan payback.
As such, it illustrates the tangled, rancorous history of the current Senate impasse over Bush's judicial nominations -- a deadlock that could turn into a political crisis if Republicans eliminate the filibuster to speed confirmation of Bush's picks, and Democrats respond by blocking other Senate business. Boyle is one of 12 circuit court nominees pending before the Senate.
"It's like the Hatfields and McCoys," said Ronald A. Klain, a former top aide to Vice President Al Gore who also headed the Senate Judiciary Committee's Democratic staff in the early 1990s. "Trying to figure out who shot first is completely incomprehensible at this point in time."
Boyle, 59, graduated from Brown in 1967 and from American University's law school in 1970. A transplanted New Jerseyite, he owes his prominence in North Carolina in part to his connection to Helms.
A staunch advocate of states' rights, Boyle worked briefly for Helms in 1973. He is the son-in-law of Tom Ellis, the adviser who helped build Helms's political machine.
At Helms's urging, President Ronald Reagan nominated Boyle, then a lawyer in private practice, to be a federal district judge in 1984. The Senate confirmed him on a unanimous vote.
It was not until October 1991, when Bush tapped him for the 4th Circuit -- at Helms's behest -- that Boyle became the object of partisan wrangling.
The issue then was not Boyle's record. Rather, he got caught up in the ill will generated by the Senate's just-concluded battle over Bush's nomination of Clarence Thomas to the Supreme Court.
The White House, angry that Anita Hill's allegations against Thomas had leaked, withheld FBI background reports on its judicial nominees from the Judiciary Committee, which was then under Democratic control.
The chairman, Sen. Joseph R. Biden (D-Del.) responded by refusing to move Bush's judicial nominees forward. The dispute was not ironed out until early 1992. Biden and then-Attorney General William P. Barr made a deal for Senate confirmation of some Bush nominees.
But Boyle's turn never came; he did not get a hearing, and his nomination died after Bush's defeat.
The new president, Bill Clinton, set out to put the first black judge on the 4th Circuit, the court of last resort for federal cases in Maryland, Virginia, West Virginia and the Carolinas, except for the handful that make it to the Supreme Court.
But Helms blamed Biden for Boyle's defeat. Under Senate procedures, he had the power to block any nominee from his home state. Publicly declaring his intention to respond to what he called the "mistreatment of our nominee by the Democrats," Helms prevented four Clinton nominees from North Carolina -- James A. Beaty Jr., Rich Leonard, James A. Wynn Jr. and Elizabeth Gibson -- from receiving hearings. Beaty and Wynn are black.
Later, Helms objected to Clinton's black nominee from Virginia, Roger Gregory, saying that the 4th Circuit, which was down to 10 of its allotted 15 judgeships at the time, did not need any new judges.
In the meantime, Boyle continued to serve on the district court for eastern North Carolina.
During the 1990s, he angered Democrats and civil rights activists by ruling, as a member of a three-judge panel, that the formation of the heavily black 12th Congressional District in North Carolina was an unconstitutional racial gerrymander. The district was eventually upheld by the U.S. Supreme Court on a 5 to 4 vote.
Those rulings earned Boyle the undying disapproval of the 12th District's Rep. Melvin Watt (D), now a leading opponent of his nomination. Watt said in a recent letter to the Judiciary Committee: "His rulings show this judge to be especially determined to defy both the civil rights statutes enacted by the Congress and the court rulings on which they are based."
In 1996, Boyle refused to ratify a settlement worked out between North Carolina and the Clinton Justice Department that would have resulted in the hiring of more women as state prison guards.
"It is most emphatically not the purpose of federal law to impose a uniformity of cultural outcome upon the individual states," he wrote.
The liberal advocacy organization People for the American Way has called that a "deeply troubling" suggestion that "states can discriminate . . . because of the state's 'culture.' "
The 4th Circuit reversed Boyle's decision, saying he had abused his discretion as a judge.
Boyle was renominated to the 4th Circuit by President Bush in 2001. But Helms had retired, and North Carolina had a new senator, Democrat John Edwards. One of the four Clinton nominees who had been blocked by Helms, Leonard, is Edwards's close friend.
Edwards turned the tables on the Republicans, refusing to permit consideration of a North Carolinian he considered unqualified for the job -- namely, Boyle.
By this time, the 4th Circuit did have its first black judge, Gregory, who had been given a recess appointment by Clinton in 2000. In a rare moment of comity between the parties, Gregory was renominated by Bush at the urging of Virginia's Republican senators, John W. Warner and George Allen -- and confirmed easily by the Senate in 2001.
But Edwards thought the 4th Circuit, which has the largest black population of any of the 12 federal circuits, needed another black nominee from his home state instead of Boyle.
Edwards's objection was enough to prevent Boyle from receiving a hearing during Bush's first term.
In the interim, Boyle has made some rulings that defied his categorization as a hard-line conservative. He pleased environmental organizations this year by halting construction of a Navy jet practice runway near a bird refuge that is the winter home of thousands of Canadian snow geese and tundra swans. Boyle said the Navy had done a flawed study of the project's environmental impact.
"I've been impressed with Judge Boyle's willingness to understand the underlying law in often-complex cases," said Derb Carter, a senior attorney at the Southern Environmental Law Center, which represented conservation groups opposed to the project.
Edwards gave up his Senate seat to run for the vice presidency alongside Sen. John F. Kerry (Mass.) in 2004. North Carolina's Senate seats are now held by Republicans, Elizabeth Dole and Richard Burr.
This helped Boyle receive a hearing before the Judiciary Committee on March 3 -- the closest he has come to a Senate vote.
The session consisted mainly of hostile questioning from Sen. Edward M. Kennedy (D-Mass.) and from Sen. Patrick J. Leahy (D-Vt.) , who asked Boyle, "I just wonder, are you so out of the mainstream that you shouldn't be on an important appellate court?"
Boyle, still interested in the job after nearly 15 years, and despite what observers said seemed to be a bad cold that day, replied: "I hope that I'm clearly in the mainstream and have done my best to apply the law and hear cases on an individual basis, have no agenda or predisposition about cases."
If Boyle is confirmed, he would have a strong incentive to serve full time for only a few years.
He is eligible to retire and continue to receive his full salary (currently $171,800 for a circuit judge) for life when he turns 65 in 2010. Or he could become a senior judge that year, earning a full salary while handling a quarter of an active judge's caseload.
In either scenario, the president would have to name a replacement, with the advice and consent of the Senate.