Oppose the Confirmation of Terrence Boyle

Recipient: Senator

Dear Senator:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest and most diverse civil and human rights coalition, we write to express continued opposition to the confirmation of Terrence Boyle to the U.S. Court of Appeals for the Fourth Circuit.

Judge Boyle’s elevation would be devastating to civil rights jurisprudence within the Fourth Circuit and beyond. The Fourth Circuit is virtually the court of last resort for persons residing within North Carolina, South Carolina, Virginia, West Virginia, and Maryland. The circuit has more African-Americans living within its boundaries than any other circuit in the country and has one of the fastest growing Latino populations. Judge Boyle’s record reflects a deep and abiding hostility to civil rights cases based on race, gender, disability, and age. His avid support of states’ rights principles threatens the millions of Fourth Circuit residents who may need to rely upon federal civil rights laws for protection against discrimination.

Judge Boyle’s twenty-year record on the district court indicates that he would move the Fourth Circuit only further to the philosophical right if he is confirmed. The Fourth Circuit is already an extremely conservative court on civil rights and Constitutional issues. The Circuit has been reversed by this Supreme Court for too narrowly construing civil rights laws, and has issued numerous opinions hostile to affirmative action, women’s rights, fair employment, and voting rights.

Judge Boyle has been reversed by the Fourth Circuit in more than 150 cases, a remarkable number in and of itself. However, in dozens of these cases concerning civil rights and criminal justice, Judge Boyle has been reversed for failing to follow precedent or for too narrowly construing the Constitution or federal laws protecting individual rights and liberties. Given the Fourth Circuit’s extremely conservative reputation, the nature and number of these reversals is truly extraordinary.

Terrence Boyle is a protege of former Senator Jesse Helms. Boyle was appointed to the federal district court by President Reagan in 1984, at the behest of Senator Helms. In 1991, President George H.W. Bush nominated Judge Boyle to the Fourth Circuit, but the nomination lapsed. In 2001, while Helms was still in the Senate, President George W. Bush renominated Judge Boyle to the Fourth Circuit.

No longer a Senator, Jesse Helms should not be awarded a living legacy on this circuit. Throughout the Clinton administration, Jesse Helms “stood in the courthouse door,” blocking the desegregation of the Fourth Circuit, the last all-white circuit court in the country. By failing to give the approval that was required of home-state Senators, then-Senator Helms prevented Senate consideration of two African-American nominees from North Carolina, federal judge James Beaty and state appellate judge James Wynn. Helms held up Judge Beaty’s nomination for four years by failing to give his approval, and the nomination finally lapsed. In 1999, President Clinton nominated Judge Wynn, but Helms refused his approval, and the Wynn nomination lapsed as well. Only after President Clinton bypassed the Senate by giving Roger Gregory from Virginia a recess appointment in 2000 was the Fourth Circuit finally integrated.

Throughout his stand against Beaty, Wynn and others, Jesse Helms argued that the Fourth Circuit “did not need any more judges.” In 1999, he even introduced legislation (S. 570) to abolish two of the fifteen judgeships. In 2000, with ten judges on the Court, Jesse Helms was still of the view that the Fourth Circuit did not need additional judges.1 A few months later, however, the new Bush administration nominated Helms’ protege, Terrence Boyle, to the court. With three additional judges now on the Fourth Circuit since 2001, the Senate plans to proceed with the Boyle nomination.

In his twenty years on the bench, Judge Boyle has promoted “states’ rights” at the expense of federal authority to protect civil rights. For example, in Ellis v. State of North Carolina, Judge Boyle invoked a state’s sovereign immunity to rule that an African American could not sue her state employer under Title VII of the Civil Rights Act of 1964.2 A panel of the Fourth Circuit – including conservative jurist Michael Luttig – ruled that Judge Boyle was wrong to dismiss the case in view of the Supreme Court’s 1976 holding that Congress specifically abrogated state immunity when enacting Title VII. Had Judge Boyle’s ruling been allowed to stand, it would have conflicted with clearly established precedent, and would have allowed state agencies to blatantly violate one of the most significant federal anti-discrimination laws on the books. Perhaps mindful of the consequence of his error, Judge Boyle has sought to distance himself from his ruling in his Senate Judiciary Committee Questionnaire concerning his appellate nomination. In his answers, he refuses to acknowledge that the legal issue on appeal was whether sovereign immunity protected states from Title VII claims, and notes only that the Fourth Circuit “commented” (rather than ruled) on the applicable law.3

Judge Boyle relied on states’ rights principles in refusing to approve a settlement in United States v. State of North Carolina.4 This case involved widespread gender discrimination in employment throughout North Carolina’s prisons, a complaint first investigated and found valid by the U.S. Justice Department under President George H.W. Bush. Judge Boyle ruled he had no jurisdiction, stating that “a federal court should be circumspect before it would take custody of large segments of a state’s sovereign functions.” Judge Boyle went so far as to criticize the Justice Department for attempting to force North Carolina to comply with national standards of equal opportunity that contradicted the state’s “culture.” After inviting the State to withdraw its consent to the settlement (which it did), Judge Boyle then refused to approve the settlement on that ground. Writing for a panel of the Fourth Circuit, Chief Judge William Wilkins reversed Judge Boyle for an abuse of discretion in refusing to approve the settlement.5

If confirmed, Judge Boyle will undoubtedly join, if not lead, the Fourth Circuit in what former Chief Judge J. Harvie Wilkinson called its “revival of Constitutional limitations that were there all along but have been greatly neglected for a very long time – the extent of federal power vis-a-vis the states.”6 During Judge Boyle’s district court confirmation hearing in 1984, Senator Helms assured Judiciary Committee Chairman Strom Thurmond that Terrence Boyle “wholeheartedly shares [his] deeply held views” on the “proper role of the federal judiciary in our system of government.”7 At that same hearing, Judiciary Chairman Strom Thurmond asked Boyle about guidelines for judges in determining the “propriety of federal judiciary intervention in the state affairs.” Nominee Boyle replied that federal courts are of “limited jurisdiction. They must recognize that the states are the reservoir of general jurisdiction and sovereignty.”

Judge Boyle has also frequently demonstrated hostility toward the Americans with Disabilities Act (ADA), and has taken several opportunities to find that Congress exceeded its powers in making the ADA applicable to states. In Pierce v. King, a decision reversed by the Supreme Court, Judge Boyle argued that Congress had no authority to apply the ADA to the states, stating that because the ADA seeks what he labeled “special treatment” for people with disabilities, rather than mere “equal treatment,” the Fourteenth Amendment provides no authority to Congress to enact that vital law as applied to the states.8

Judge Boyle’s civil rights jurisprudence in other areas is equally troubling. He has shown disdain for the widely accepted method of proving discrimination known as “disparate impact,”