In the aftermath of the Alito nomination, it would be easy to think that the issue of Bush's court picks would fade away, at least until after the elections this fall. But we can't allow ourselves to be lulled into that kind of complacency. In the next few weeks, the Senate will likely take up the nomination of U.S. District Judge Terrence W. Boyle to the U.S. Court of Appeals for the Fourth Circuit.
Here's what Boyle's record as a judge tells us: he is a hard-right judicial activist who has sought to roll back well-settled precedents and override the express will of Congress. His opinions are hostile to individual rights claims made by African-Americans, persons with disabilities and others, often in the name of "states' rights."
And when his opinions are appealed, the most conservative appeals court in the country has reversed his decisions more than 150 times -- twice the rate of the average Fourth Circuit trial judge -- for subverting basic procedural rules and misconstruing clear legal principles. This high reversal rate calls into question his fitness to serve as an appeals court judge. Since the Supreme Court hears so few cases, for the most part he wouldn't have a higher court looking over his shoulder to correct his fundamental misapplications of the law.
The Fourth Circuit is the most conservative and activist appeals court in the nation -- based on his record, Judge Boyle's elevation would only make it more so.
But let's look even deeper than Boyle's record. They say that the true measure of a man is demonstrated by the company he keeps. Throughout Boyle's career he has benefited from the patronage of one man -- the original bogeyman of the progressive community -- Jesse Helms.
Boyle began his career after law school working in Jesse Helms' senate office in Washington. And it was Helms' recommendation to Ronald Reagan that got Boyle his first court seat on a North Carolina District Court in 1984. Then in 1991, Helms convinced the first President Bush to elevate Boyle by nominating him to the Fourth Circuit Court of Appeals. But as the 1992 election season progressed, Boyle's nomination languished and when President Clinton took office in 1993, he refused Helms' demand that Boyle be renominated.
And that's when Jesse got really angry. For eight years, Helms refused to support any other North Carolina nominees to the Fourth Circuit unless President Clinton backed down and renominated Boyle. By the time Clinton left office, the Fourth Circuit bench was one-third vacant.
So now we have another Bush in the White House. And Helms finally got his way when Dubya nominated Boyle in 2001. The Democrats controlled the Judiciary committee back then and refused to take up the nomination, as did Republicans when they took over in 2003. But after Bush was re-elected in 2004, he renominated Boyle and the Republican Judiciary Committee, having run out of other nominees, approved his nomination without the vote of a single Democrat. So now, after fifteen years, a Senate vote on Boyle is finally imminent.
The lifetime of support from the man who turned race-baiting into a finely honed political weapon is a fact that makes Boyle's "states' rights" philosophy that much clearer and even more repellant. It's time to tell the Senate to stop the Boyle nomination once and for all -- and make it the final chapter in Jesse's sordid legacy.