ACSBlog: The Blog of the American Constitution Society

The Washington Post quotes several leading conservative legal activists who fear that recent vacancies on the Fourth Circuit, a court which has long been among the nation's most conservative, will move closer to the center.  The Fourth Circuit currently has three vacancies, two of which have been open since the Clinton Administration.  Chief Judge William W. Willkins, a conservative, has also annouced plans to take Senior status this July.

President Bush has nominated several controversial attorneys to fill the vacancies on the Fourth Circuit which have not been received favorably by the Senate.  Among these nominees is William Haynes, the present Defense Department General Counsel, who many Senators oppose due to his role in authorizing "cruel treatment" of terror suspects.  Another nominee, Judge Terrence Boyle, a former aide to Senator Jesse Helms (R-NC), has been criticized for his record as a United States District Judge:

Among the highlights of Boyle’s record:

• a North Carolina employment case in which he suggested that the federal government should respect discrimination that is explained by a state’s “culture”;
• attempts to exempt state agencies from federal anti-discrimination laws, including an Americans with Disabilities Act case in which he suggested that working is “not a major life activity” warranting protection under the ADA;
• a reversal rate that is significantly higher than other judges in the Fourth Circuit, one of the most conservative appeals courts in the country;
• repeated reversals for committing “plain error,” which are obvious and egregious mistakes that harm individual rights and undermine the fairness and integrity of judicial proceedings;
• numerous reversals for repeating the same mistakes for which he was reversed in earlier rulings.

A third Bush nominee to the Fourth Circuit, Claude Allen, was withdrawn.  Allen is currently serving 18 months probation after being convicted of numerous counts of shoplifting.

The fate of the Boyle, Haynes and Allen nominations contrast with that of another Bush nominee to the Fourth Circuit, Judge Allyson Duncan.  Judge Duncan, a Republican who is widely considered a political moderate, was nominated early in the President's term with the support of Democratic Senator John Edwards.  Duncan was unanimously confirmed by the Senate.