Marc Morial: The Senate must reject Judge Terrence Boyle

• Originally published in the Copley News Service February 22, 2005

Copyright 2005 Copley News Service

By Marc H. Morial

Does a United States District Court judge who has demonstrated extraordinary hostility to laws protecting the rights of Americans deserve appointment to a U.S. Court of Appeals?

Does a U.S. District Court judge of extremely conservative views deserve advancement to the U.S. Court of Appeals for his jurisdiction when more than 150 of his decisions have been reversed on appeal by that very Court of Appeals - a panel which itself is universally regarded as the most conservative Appeals Court in the country?

Does a U.S. District Court judge who fails to turn over thousands of his unpublished civil rights opinions to the Senate Judiciary Committee, which is to review his nomination, deserve a lifetime seat on the nation's second highest court?

These and other questions surround the Bush administration's nomination of U.S. District Court Judge Terrence Boyle for a seat on the U.S. Court of Appeals for the Fourth Circuit. Its jurisdiction covers the states of North Carolina, South Carolina, Virginia, West Virginia and Maryland.

We think the answers to those questions add up to a resounding no - and we urge the Senate Judiciary Committee, which is about to formally consider the nomination, to reject it.

Judge Boyle, of North Carolina, has been a Federal District Court judge since 1984, when he was appointed by President Reagan. He was first nominated to the Fourth Circuit Court of Appeals in 1991 by President George H.W. Bush, but the Judiciary Committee let his nomination lapse. Now, Judge Boyle, long supported by former Republican Sen. Jesse Helms, of North Carolina, on whose staff he once served, and the late Republican Sen. Strom Thurmond, of South Carolina, has been renominated to the Fourth Circuit by President George W. Bush.

But the Senate Judiciary Committee's answer must still be no.

Judge Boyle's decisions overwhelmingly display an astonishing disregard for the rights of individuals and the proper exercise of judicial authority. As his record of reversals on appeal proves, even a significantly conservative review panel has found his rulings unacceptable far too often.

In cases involving race that come before Judge Boyle, the plaintiffs rarely reach the trial stage. He's dismissed numerous cases even before trial - decisions that have prompted numerous reversals by the Fourth Circuit Court.

For example, in one case, Rogers v. Lee, the Fourth Circuit reversed Judge Boyle for not following the established law on discriminatory jury selection practices. In that case, Judge Boyle allowed the prosecution to strike every black juror, leaving the African-American defendant to be tried and subsequently convicted by an all-white jury.

In another case, Franks v. Ross, the Fourth Circuit reversed Judge Boyle for summarily rejecting a claim of environmental racism by plaintiffs seeking to halt construction of a landfill in a predominantly black area. The Fourth Circuit cited numerous errors by Judge Boyle, including his abuse of his discretion in denying an amended complaint, incorrectly calculating when the statute of limitations had begun to run, and wrongly concluding that state officials were immune from being sued.

Judge Boyle's errors in one civil rights case led the U.S. Supreme Court to reverse him twice in that same case. The case was Cromartie v. Hunt, in which a group of white North Carolina voters challenged the drawing of boundaries for a district represented by Democrat Mel Watt, an African-American.

First, the high court declared in a unanimous 9-0 decision that Judge Boyle had erred in ruling without a trial that the North Carolina legislature drew the boundaries of the district primarily for racial reasons.

Judge Boyle then held a trial - and again ruled the district's boundaries had been drawn for racial purposes. Again, the Supreme Court declared that it had not been proved the state legislature had drawn the district's boundaries primarily for racial reasons, and reversed Judge Boyle's decision.

Judge Boyle's record is replete with examples of his seeking to protect the state from civil rights lawsuits that don't involve race, too.

For example, in a suit against the North Carolina Department of Motor Vehicles, Judge Boyle was one of the first judges in the country to assert that a state's sovereign immunity protected it from suits filed by employees under the Americans with Disabilities Act. Later, he ruled that Congress did not have the authority to apply the ADA to state prisons. The Supreme Court, taking up a similar case involving Pennsylvania, subsequently declared that states could be sued under ADA provisions.

Judge Boyle's record on the bench marks him as being significantly out of step with mainstream American jurisprudence, be it conservative or liberal, and with the need of all the residents of a Circuit Court jurisdiction that has more African-Americans residing within its boundaries than any of the nation's 12 other Circuit Courts.

Certainly, the Bush administration, which has seen more than 200 of its judicial nominees approved by the Senate, can do better than Judge Terrence Boyle.

The Senate Judiciary Committee must do its duty in reminding them of that.

Marc H. Morial is president and chief executive officer of the National Urban League.

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