A Tale of Two Judges

Tuesday, May 9, 2006

SENATE REPUBLICAN leaders have decided to reignite the judicial nomination wars. The reason is politics. Majority Leader Bill Frist's strategy, with elections coming, is to schedule votes on the most controversial of the president's remaining appeals court nominees, forcing Democrats to capitulate or filibuster -- either of which works for him. The first will be Brett M. Kavanaugh, the president's staff secretary and long-standing nominee to the U.S. Court of Appeals for the D.C. Circuit. Next is Judge Terrence W. Boyle, whose nomination to the 4th Circuit has languished since the beginning of President Bush's tenure. Both nominations are provocative, but their merits are different. The Senate should confirm Mr. Kavanaugh but not Judge Boyle.

Judge Boyle has served as a district judge in North Carolina for many years; his elevation to the 4th Circuit was a particular goal of former senator Jesse Helms (R), who blocked a string of President Bill Clinton's nominees to the court to keep the seat open for his man. Judge Boyle has written some impressive environmental opinions. But he has a high rate of reversal, some of his work is surprisingly sloppy, and some of his civil rights opinions are terrible.

Moreover, in recent weeks it has emerged that Judge Boyle has been careless about ethics. The law forbids judges to rule in cases in which they own stock in one of the parties. Judge Boyle has done this repeatedly, even in the years since his nomination to the 4th Circuit. His pattern of disregard for clear legal obligations is exceptional. The Senate should not condone it.

Mr. Kavanaugh's nomination is more complicated. A wise president would have chosen someone utterly above partisan objection. Instead, Mr. Bush chose a young lawyer whose career has placed him at the vortex of numerous ideological controversies. During the Clinton administration, Mr. Kavanaugh worked for Whitewater independent counsel Kenneth W. Starr, whose impeachment report he helped write. He has also worked in the White House counsel's office on, among other controversial subjects, judicial nominations. Democrats can perhaps be forgiven for balking.

Yet Mr. Kavanaugh is a talented attorney. He has been involved in controversies, but he does not appear to be an ideologue. While Democrats complain that his experience is thin, it is no more so than others who have won confirmation and served on that court. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) is holding a second hearing on Mr. Kavanaugh's nomination today. If it produces nothing new, he should be confirmed.

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