There’s more to the Terrence Boyle story than I had time tell in my post below. As I said, the first President Bush nominated Judge Boyle for the Fourth Circuit in 1991. My understanding is that Senator Biden (then chairman of the Senate Judiciary Committee) promised Senator Helms that Boyle would clear committee while Helms was undergoing major surgery, but didn’t keep that promise.
Helms retaliated by blocking every Fourth Circuit nominee from North Carolina that President Clinton sent up. However, President Bush tried to end the bad blood. First, he nominated Roger Gregory to the Fourth Circuit. Gregory, an African-American and Democrat, had received a recess appointment late in Clinton’s second term. It is virtually unheard of for the recess appointee of a president from one party to receive a regular appointment from a president of the other party. Then, Bush nominated Allyson Duncan, a moderate Republican from North Carolina, whose nomination was supported by Senator Edwards.
None of this olive-branching made any difference to Edwards or his fellow Democrats. Contrary to what their apologists say, the Senate Democrats generally don’t oppose nominees based on tit-for-tat. They oppose nominees based on what the liberal special interest groups instruct them to do. Thus, Boyle remains in limbo.
As always, the Democrats have manufactured a justification for their opposition. Supposedly, Boyle’s reversal rate (the percentage of times the Fourth Circuit reverses his decisions as a district court judge) is too high. Republicans respond that his reversal rate is lower than the national average. Apparently, it depends on how you slice the numbers.
Whatever. I don’t recall a district court judge’s reversal rate ever being a factor in rejecting his or her elevation to a court of appeals, much less in filibustering a nominee. For one thing, reversal doesn’t mean a judge was wrong, it just means a majority of some panel further up the food chain disagreed. If the Democratic compromisers take the position that Judge Boyle’s reversal rate is an “extraordinary circumstance” justifying a filibuster, they will reveal their lack of principle and good-will. Senator Graham seems to be attempting to communicate this to his fellow compromisers, stating that “I don’t believe there’s any extraordinary reason to deny [Boyle’s] promotion to the appellate court” and “I believe very passionately that Judge Boyle deserves a vote.” If the Democrats’ position nonetheless stands, then a new criterion for confirmation will be established and Republicans will be justified in blocking any future Democratic nominee who is less in sync than average with the next court up the ladder.
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