Bush won't renominate anti-disability rights judge for appeals court

The Associated Press reports that:

In a concession to the Senate's new Democratic majority, President Bush won't rename four controversial federal appeals court nominees whose confirmations were blocked last year, Republican officials said last week.

William Haynes, William G. Myers III and Michael Wallace all asked to have their appointments withdrawn, these officials said. Judge Terrence Boyle was informed of the White House's decision, according to an ally.

In 2005, Boyle, a federal judge in North Carolina, was noted by the People for the American Way as being unfit for promotion to the federal Court of Appeals for several reasons. From the PFAW website:

Judge Boyle’s record is troubling in at least two distinct ways. First, he has been reversed frequently by the Fourth Circuit, one of the most conservative appeals courts in the entire country. In fact, he has been reversed considerably more frequently than has the average district court judge in the Fourth Circuit and around the country. He has also been reversed an average of more than twice as often per year as any other federal district court judge President Bush has nominated to the appellate bench. Such a high record of reversals, especially considering that Judge Boyle has frequently been reversed for making the same or similar errors, calls into question his ability as a jurist. And his apparent effort to obscure his record of reversals in his answers under oath to questions from the Senate Judiciary Committee, as detailed below, raises extremely serious concerns.

Second, Judge Boyle’s record reveals a troubling history of espousing a damaging neo-federalist philosophy from the bench that is particularly harmful to civil rights. He has been very aggressive in supporting “states’ rights” views in cases that criticize Congress’s authority to protect individuals from discrimination committed by state agencies. Moreover, a number of his decisions have been specifically hostile to civil rights, including with respect to cases brought by people with disabilities as well as in redistricting and race and sex discrimination cases, many of which have been reversed. And he has been reversed several times in important cases concerning campaign finance.

Boyle's troubling record includes the case of the United States v. North Carolina, an employment discrimination case about the state's gender bias in hiring correctional officers at men's prisons. Among the many conclusions Boyle made that basically rejected the federal right to apply Title VII to a state, he declared that North Carolina's "culture" was a valid reason for disparate employment practices.

And Boyle's hostility toward the ADA has been well documented by rulings hostile to both the federal law and disabled persons' civil rights. In Pierce v. King, Boyle denied the ADA applies to state prisons because they do not have a "substantial effect" on interstate commerce. The plaintiff in the case filed an ADA employment discrimination case against NC because the state prison did not offer him accommodations for prison work that could lead to time off for good behavior. Boyle went further, saying that Congress had no authority at all to apply the ADA to states because, unlike other civil rights laws, the ADA seeks "special" and not "equal" treatment.

While the Fourth Circuit upheld Boyle's decision in the Pierce case, it was vacated when the Supreme Court unanimously ruled on a similar Pennsylvania case, Pennsylvania Department of Corrections v. Yeskey. That case addressed the discrimination of a disabled prisoner's ineligibility for an inaccessible "Motivational Boot Camp" for first-time offenders that significantly shortens a prisoner's time behind bars. Even Justice Scalia, who wrote the opinion, asserted that “the plain text of Title II of the ADA unambiguously extends to state prison inmates.” The broader issue of Congress' power to apply the ADA to the states was not addressed.

In Brown v. North Carolina Division of Motor Vehicles, disabled North Carolinans sued against what was basically a tax on disability, where disabled parking permits required payment of a fee not imposed on nondisabled citizens. Again, Boyle used the opportunity to declare the ADA special rather than equal treatment under the law, and even declared disabled people to not be a legitimate group insofar as protection from discrimination is concerned.

The PFAW report on Boyle continues:

The Supreme Court has repudiated Boyle’s theories even in a decision limiting individuals’ rights under the ADA. In Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Court ruled 5-4 that individuals could not sue states for damages under Title I of the ADA because of insufficient evidence of state discrimination against the disabled and because the remedy was not congruent and proportional to the violation. But nowhere did the majority suggest that legislation pursuant to the Fourteenth Amendment must be limited to discrimination based on race, alienage, national origin or gender, and nowhere did the Court suggest that states cannot be required to comply with the ADA as Boyle had ruled. To the contrary, even the court majority specifically recognized that while damages were not available, Title I of the ADA “still prescribes standards applicable to the states” which can be enforced in lawsuits “for injunctive relief,” directly contrary to Boyle’s view. Id. at 374, n. 9. And in Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Court ruled that even money damages may be available for some violations of Title II of the ADA. Boyle’s radical “states’ rights” view goes far beyond even the most conservative justices on the Supreme Court and would effectively dismantle the ADA as applied to state government agencies.

Note that last sentence above to understand exactly who Bush has been nominating to federal positions: Boyle’s radical “states’ rights” view goes far beyond even the most conservative justices on the Supreme Court and would effectively dismantle the ADA as applied to state government agencies.

In Williams v. Avent, Inc., Boyle gave summary judgment against a plaintiff claiming she was fired instead of being given reasonable accommodation for a back injury that minimized her ability to lift much weight. The Fourth Circuit spanked Boyle in its discussion of "reasonable accommodation" under appeal. The description of that judgment's criticism of Boyle is worthy of reading as presented on page 20 of the PFAW .pdf file -- you'll need to scroll down to the 20th page to see it.

But there's more. On environmental racism and religious discrimination Boyle also denied the state was culpable for discrimination. The Fourth Circuit has also reversed several decisions by Boyle on redistricting cases where he consistently favored white plaintiff voters. On one occasion, Boyle issued an opinion on a case he was not even assigned to -- before the assigned judge ever heard arguments.

Finally, on federal campaign finance laws, Boyle has sided with local anti-abortion organizations against the FEC. The Fourth Circuit did reverse.

Boyle was the only one of the four judges who Bush will apparently not be renominating that did not withdraw himself from consideration. And Bush's decision is only prompted by the clear opposition he will face from a Democratic Congress. This is a direct effect of our vote, though only time will tell if Bush's next nominations are any better on civil rights for disabled folks.