By Lisa Keen
The White House this week withdrew its nomination of several controversial federal judges, including one who was considered to be "horrific" on the Americans with Disabilities Act and another who believed the constitutional provides no right to privacy.
The latter, William G. Myers III, was nominated to the 9th Circuit U.S. Court of Appeals, which covers California, Oregon, Washington, and several other western states. According to the Alliance for Justice, a judicial watchdog group, Myers was aligned with anti-gay federal judge Robert Bork and supported the 1986 U.S. Supreme Court ruling in Bowers v. Hardwick which upheld state laws prohibiting consensual sex between same-sex partners (the high court's Lawrence v. Texas decision in 2003 reversed that ruling).
Terrence Boyle, a former aide to the notoriously anti-gay U.S. Sen. Jesse Helms, R-N.C., was nominated by President Bush to serve on the 4th Circuit U.S. Court of Appeals bench. The 4th Circuit covers Virginia, Maryland, North Carolina, South Carolina and West Virginia.
The Human Rights Campaign, the National Gay and Lesbian Task Force, Lambda Legal Defense and Education Fund and other gay organizations opposed Boyle's nomination, which has been pending for three years, saying he had a "clear hostility towards civil rights claims and blatant disregard for the law." Lambda Executive Director Kevin Cathcart issued a statement last week, praising the "congressional leadership" for "making clear that Judge Boyles's nomination would face serious opposition."
An aide to Helms and a graduate of the Bob Jones University law school who has been serving as a judge on the U.S. District Court in Raleigh, N.C., Lambda Legal characterized his record on the Americans with Disabilities Act as "horrific."
The ADA prohibits discrimination based on disability, including HIV infection, and requires employers to make a "reasonable accommodation" to enable a person with a disability to continue working. But the law also allows for employers an exemption to the law if making such an accommodation would impose an "undue hardship" on their business.
Lambda said Boyle consistently sided with employers in ADA cases.
"He ruled that courts should defer to an employer's opinion of whether a reasonable accommodation has been made to a disabled employee," said Lambda in a statement. "At the time that Lambda Legal opposed Boyle's nomination there were no cases in the public record where Boyle ruled in favor of a plaintiff in an ADA case."
Boyle, a U.S. district court judge in eastern North Carolina, has participated in a number of 4th Circuit cases as a "designated" judge for the court, a role some judges are given a chance to play, usually to help with heavy caseloads. He was originally appointed by President Reagan to the district court; and was first nominated for an appeals court position by President George H.W. Bush. His nomination was opposed by numerous civil rights groups and was twice blocked by U.S. Sen. John Edwards, D-N.C., when he served in the Senate.
The White House decision to withdraw Boyle's nomination – and that of three other controversial nominees to federal appeals courts – is being widely interpreted as a sign that the Bush administration knows it can't get the nominations approved by the new Democratic-led Senate.
The Associated Press reported that the White House informed Boyle it was withdrawing his nomination, but the other three nominees reportedly asked that their nominations be withdrawn following the November elections which swept Democrats into the majority in both the House and Senate.
The other two nominees were William Haynes, general counsel at the Pentagon, and Michael Wallace of Mississippi, who had clerked for former U.S. Supreme Court Justice William Rehnquist, who amassed one of the worst records on the bench concerning gay civil rights.
