Monday, April 25, 2005

Terrence W. Boyle

[Days ago, I committed to reviewing each of the judicial nominees whose appointments are currently held up in the United States Senate. As I undertook my research, I discovered that some of the nominees have very little information discoverable on-line. I had hoped to be able to take a look at one or two of the nominee's more controversial decisions in order to assess them against the accusations of their detractors. With time constraints, that is not going to be possible. I have sought, instead, to provide a reasonably useful profile of the nominee, based upon press information in their home states, and the judiciously-parsed partisan information that is available from the various interest groups embroiled in the fight.]

So, onward with Judge Boyle:

Nominated to: Court of Appeals, 4th Circuit May 9, 2001

Born 1945 - Passaic, New Jersey
B.A., 1967 - Brown University
J.D., 1970 - American University, Washington College of Law
U.S. House of Representatives,
Subcommittee on Housing, Committee on Banking and Currency
1968-70 Staff Assistant
1970-73 Minority Counsel
1973 - Legislative Assistant to Senate Jesse Helms.

LeRoy, Wells, Shaw, Hornthal & Riley
1973-76 Associate
1977-84 Partner

U.S. District Judge, Eastern District of North Carolina, 1984-present
(Appointed by President Reagan)

At the request of Senator Helms, Boyle was originally nominated to the Fourth Circuit by President George H.W. Bush. Judge Boyle's nomination lapsed at the end of 1992 and President Clinton refused to re-nominate him. In response, Senator Helms blocked confirmation of all of Clinton’s North Carolina nominees to the Fourth Circuit, including a friend of Senator John Edwards, James Wynn.

When George W. Bush took office, Helms resumed his role as chair of Senate Judiciary Committee, and the nominations of Judge Boyle and others followed. Boyle was first nominated in May of 2001. The Democrats in the Senate cooperated with the Bush Administration to confirm two nominees, Allyson Duncan and Dennis Shedd, but have held up the remaining two. Despite having stated in the Congressional Record that, as a member of the Senate Judiciary Committee, he will approve "well qualified judges" regardless of party,
[1] Senator John Edwards of North Carolina has spearheaded the Doyle opposition. Edwards’ interest in obstructing Judge Boyle’s appointment is likely payback for Senator Jesse Helms’ refusal to back Clinton appointee James Wynn.[2] Edwards has stated he will oppose Boyle unless President Bush re-nominates Wynn.[3]

The Fourth Circuit currently has nine Republican appointees, four Democratic appointees and two vacancies.

While Boyle’s candidacy has creating controversy in Washington, D.C., according to newspapers in his home state, people find it difficult to understand why. The Charlotte News-Observer notes that the legal community, in particular, is puzzled:

"If you read what they say about him, you expect to see somebody in a Klansman's robe," said James B. Craven III, a criminal defense attorney from Durham.

Boyle, a former aide to conservative Republican Sen. Jesse Helms, has been described as too far out of the mainstream and his nomination is hotly opposed by civil rights groups, police and advocates for the disabled.

Craven, who has practiced in front of Boyle for 20 years, describes himself as a "tax-and-spend, bleeding-heart liberal Democrat" who actually likes Boyle.

"He's bright, he's super-compassionate, he's incredibly productive," Craven said. "What else matters?"

The fuss is over Boyle's long and dense record, which defies easy description.

He is respected by environmentalists, supported by the American Bar Association and well-regarded by many of the lawyers who practice before him day to day.

But U.S. Rep. Mel Watt, a Charlotte Democrat and head of the Congressional Black Caucus, said in a recent letter, "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."

Boyle has ruled on 12,000 cases as a federal judge in the state's Eastern District, the 44 counties in the easternmost part of the state. He has a reputation as a tough judge who won't accept an "I don't know" from lawyers, and who quizzes criminals before he passes a sentence on them.

He was the judge who ruled that the 12th Congressional District of the 1990s, which stretched along Interstate 85 from Charlotte to Greensboro, was the result of an illegal racial gerrymander.

In February, Boyle stymied the Navy's efforts to build a practice landing strip in eastern North Carolina, saying it had not adequately studied the impact on the environment.

And last month, he bristled at a plea agreement that would allow state District Court Judge Garey Ballance to remain a judge even after pleading guilty to tax evasion in a far-reaching criminal conspiracy case.

Boyle has said almost nothing about his nomination, commenting publicly only at his committee hearing in March.

"I regret that I'm having to defend what I think a more complete examination will show is a record of sensitivity to plaintiffs and to the underprivileged and for those who don't have a voice otherwise," Boyle told the senators. "A careful look at my record will show that I am evenhanded, that the cases I've decided have been decided on the facts as I understood them at the time and not based on any agenda."

The News-Observer recently published a a review of Judge Boyle’s record. The essence of it is this (with full attribution to the news story):

Boyle has presided over more than 12,000 cases in twenty years on the bench.


Boyle was part of a 2-1 majority that ruled the 12th Congressional District was illegally drawn on the basis of race (i.e., favoring black voters). Cromartie v. Hunt, 133 F. Supp 2d. 407 (E.D.N.C. 2000).

After the 4th Circuit upheld his decision, the Supreme Court unanimously overturned the decision, saying the panel was wrong to make its decision without hearing evidence and sent the case back to Boyle's court. After a trial, Boyle again said race was the predominant factor in drawing lines for the 12th district. Again, the Supreme Court reversed him. Cromartie v. Hunt, 121 S. Ct. 1452 (2001) (5-4 decision)


Advocates for the disabled have been some of Boyle's most persistent critics, saying Boyle has repeatedly undermined the Americans with Disabilities Act.

Boyle acknowledged at his Senate confirmation hearing that he had made mistakes interpreting the law.


In a key area of law, Boyle has consistently ruled for the environment over commercial and governmental interests.

With respect to Boyle’s environmental record, Derb Carter, senior attorney at the Southern Environmental Law Center in Durham said, "Judge Boyle is willing to apply the law as he sees it. And he showed a lot more courage than many political leaders in the state in making this ruling."

Carter said in an earlier article, "As a lawyer, what I want in a judge is someone who is smart, thorough, understands the law and gives you a fair hearing…Those are all qualities that I have found in Judge Boyle."


In death penalty cases, Boyle has taken a middle course.

Boyle has not granted convicted murderers new trials or resentencing. But several times he has ordered court hearings to explore inmates' legal claims.

At least three times in the past two years, he has temporarily halted executions to allow time for arguments on newly raised legal points, each time over the state's objection.

"He has paid a lot of attention to the details of the cases, and his procedural rulings have been fair," said Ken Rose, director of the N.C. Center for Death Penalty Litigation. "It takes some courage for a judge to stay an execution, even a life-term federal judge, because there's a lot of public pressure not to stop them."


The Southern States Police Benevolent Association came out against Boyle's nomination to the 4th Circuit. In his Senate hearing, Boyle downplayed the police opposition, saying he thought it was based on a single case.

In that case, Boyle ruled that a Goldsboro police officer had no legal right to teach an off-duty gun-safety course when his department forbade it.

The 4th Circuit said that Boyle abused his discretion when, at one point, he refused to let the officer amend his lawsuit.


In another ruling that critics highlight, Boyle in 1996 refused to approve a lawsuit settlement agreement between the N.C. Department of Correction and the U.S. Justice Department.

Boyle rejected the settlement. The 4th Circuit sent the case back to Boyle with instructions to approve the settlement, saying he couldn't reject it. When the case came back from the 4th Circuit, he followed the appeals court's orders.

Reversal Rate

A highly contentious aspect of Boyle’s candidacy is his rate at which his decisions have been reversed. The News-Observer had an amusing take on that issue:

“Lawyer Craven said that debate is bunk. "The 4th Circuit is the most conservative court north of Argentina," he said. "Particularly in the area of criminal sentencing, he's to the left of many of them. My sense is that in many of the cases where he's been reversed is because he's trying to give some slob a break."

At his Senate hearing, Boyle sat at a desk in front of the senators and acknowledged the controversy swirling around him. He spoke about his commitment to fairness in criminal cases, but he might as well have meant his entire 21-year record as a federal judge.

"Obviously I've been criticized at times," Boyle told Sen. Ted Kennedy, the Massachusetts Democrat. "That's part of the world of working in a criminal justice system."

"Politics, too," Kennedy replied. "Politics, too."


On this subject, according to the News-Observer here, “Republicans say it's about 7.5 percent, lower than the 9.7 percent average. Democrats say that Boyle defined a reversal narrowly and that the rate is more like 12 percent.”

[If Boyle has ruled on 12,000 cases in his twenty years on the bench, 12% would be 1,440 reversals, and the 9.7% average would be 1,164. In either case, the number of reversals is certainly “more than 150,” as the Alliance for Justice contends, erroneously, is “more than twice the average.”]

Judge Boyle’s hearing before the Senate Judiciary Committee contained the following exchange that tells you more about Senator Patrick Leahy than it does about Judge Boyle:

Leahy homed in on a unanimous reversal by the U.S. Supreme Court [ed: this was the Redistricting case]. He said the court "couldn't agree on a lunch order" unanimously, much less the rejection of a decision.

Leahy also said Boyle has been reversed by the 4th Circuit itself, a court that, like Boyle, is conservative in ideology.

"Are you so out of the mainstream that you shouldn't be on an important appellate court?" Leahy asked.

"I hope that I'm clearly in the mainstream," Boyle said, "and have done my best to apply the law and hear cases on an individual basis and have no agenda or predisposition about cases."

The News-Observer seems to think Judge Boyle is not so easy to pigeonhole as Senators Leahy and Kennedy would think:

Is it "liberal" to rule in favor of environmentalists and local governments trying to stop the Navy's planned fighter jet practice runway near a bird refuge in Washington and Beaufort counties?

Or is it "conservative" to make the military follow the law?

Boyle worked for Helms decades ago in Washington and married a daughter of Raleigh lawyer Tom Ellis, Helms' political strategist. And Boyle is conservative enough for President Bush, who nominated him in 2001 for a seat on the 4th U.S. Circuit Court of Appeals -- a nomination that has yet to come up for a Senate committee hearing.

But in 20 years as a judge, Boyle has won considerable support from Eastern North Carolina lawyers who say he's fair and plays it straight, often with tough questioning of both sides before him.

"He comes prepared," Carter said. "He demands that the lawyers be prepared to present their cases and answer his questions about the law and the facts."

Boyle, a New Jersey native who settled in historic Edenton and often works in Raleigh, has built a complex judicial record. He has ruled against the state in congressional redistricting suits, and he's no comfort to violent criminals.

Veteran Raleigh criminal defense lawyer Wade Smith, a former state Democratic Party chairman, has called Boyle "a great friend of the Constitution."

Boyle has deep knowledge of northeastern North Carolina, where he lives and where the Navy wants to build the runway.

When a lawyer for the Navy said during a hearing on the injunction that heavy traffic noise on N.C. 99 already disturbs birds in the nearby Pocosin Lakes, Boyle pounced. He knew better.

"A lot of traffic on Highway 99?" Boyle asked, incredulous. "Have you ever driven there?"

In all, from what I have observed, it would seem that Judge Boyle has been culpable on rare occasions of exercising his judicial discretion in, shall we say, a somewhat arbitrary. But with over twenty years on the federal bench, if all the opponents can come up with is an argument over a few percentage points in his reversal rate and some controversial rulings that liberals didn’t like, what is the story here?

The story here is the same as the story in Michigan (keep tuned). This is payback for some of old Jesse Helms’ hardball -- but it is nothing that shouldn't be dealt with among good negotiators in the Republican majority.

For additional reading material from unabashed partisans on both sides:, a website of the Free Congress Foundation, describes Boyle’s work in a number of areas important to conservatives.

On the side of those opposing Boyle, the Alliance for Justice maintains a website which contains a fairly obvious partisan review of Judge Boyle’s work.

[1] 146 Cong. Rec. S9671 (daily ed. Oct. 3, 2000)
[2] New Orleans Times-Picayune, May 30, 2001, 01
[3] The News & Observer (Raleigh NC), May 22, 2001, A3

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