- The Washington Times - Friday, June 17, 2005

The Senate Judiciary Committee narrowly approved elevating to the federal appeals court yesterday a district judge who is likely to become the first test of the deal brokered last month to curb judicial filibusters.

Terrence W. Boyle, nominated to the Richmond-based 4th U.S. Circuit Court of Appeals, was approved 10-8 by the committee, a straight party-line vote that has become the primary indicator that Democrats will filibuster a nominee on the Senate floor.

After the vote, however, several key Democrats said no decision has been made about whether to filibuster the nominee.

Democrats argued that Judge Boyle is dismissive of settled law such as anti-discrimination laws and the Americans with Disabilities Act. More serious, they say, is the high rate at which they say higher courts have reversed him.

“We’re asked to make him a circuit court judge, and he’s not a very good district court judge,” said Sen. Patrick J. Leahy, Vermont Democrat and ranking member of the committee. “He has difficulty with settled law; he’s frequently reversed; he’s hostile to some of the most important pieces of legislation Congress has passed.”

Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, says Judge Boyle’s reversal rate is 7.5 percent, which is lower than the national average of 8.6 percent.

But that rate — produced by the administrative office for the federal judiciary — doesn’t include cases in which Judge Boyle’s opinions were reversed in part, Mr. Leahy said, such as a case where a conviction was upheld, but the entire sentence was vacated. Democrats peg Judge Boyle’s reversal rate at about 12.5 percent.

Judge Boyle is the first contentious nominee to come out of committee since last month’s bipartisan deal to employ filibusters against judicial nominees only under “extraordinary circumstances.”

Sen. Lindsey Graham, South Carolina Republican who is a member of the committee and signed the filibuster deal, called the Democratic criticism a “cut-and-paste job” and said, “I don’t think there’s any extraordinary reason to deny his promotion to the appellate court.”

But, Mr. Graham added, he would “want to listen” to the Democratic signers of the deal if they decide to filibuster Judge Boyle.

“I’m not going to tell you what I’m going to do, but I believe very passionately that Judge Boyle deserves a vote,” he said. “Let’s see what happens when we get there.”

Judge Boyle has come to symbolize the intractable partisan fight over judicial nominations that has dominated the Senate Judiciary Committee during the past two decades.

A federal judge in the Eastern District of North Carolina, Judge Boyle was first nominated to the 4th Circuit bench in 1991 by President Bush but never got out of the Democrat-dominated committee.

Angry that Judge Boyle wasn’t confirmed, Sen. Jesse Helms, North Carolina Republican, subsequently blocked for eight years every Clinton nominee to the 4th Circuit from North Carolina. In turn, Sen. John Edwards, the North Carolina Democrat, blocked Judge Boyle’s nomination in the same manner during President Bush’s first term.

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