Terrence Boyle's Fourth Circuit Nomination Stalls for Record Time

A home-state senator's support can have its downsides

There is a lot of truth to the old joke that the surest way to become a federal judge is to have your best friend become a senator. But as the judicial-confirmation wars have intensified, having a strong Senate sponsor provides no guarantee that a nominee will be confirmed.

The course of George W. Bush’s nomination of Terrence W. Boyle to a Fourth Circuit seat in 2001 illustrates the limitations of a home-state senator’s support.

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Terry Boyle was only 38 years old when Ronald Reagan nominated him in April 1984 to a federal district court seat in North Carolina. In addition to a decade in private practice, Boyle had worked for three years as a House staffer and, more importantly, for one year as a legislative assistant to Senator Jesse Helms of North Carolina right at the beginning of Helms’s long Senate career. Boyle’s candidacy also benefited significantly from the fact that he was married to the daughter of Thomas F. Ellis, Helms’s political godfather and a powerful backer of Reagan.

Judge Terrence Boyle

A routine backroom deal expedited Boyle’s confirmation. Joe Biden, then the ranking Democrat on the Senate Judiciary Committee, pushed the White House to nominate his favored candidate, Joseph J. Longobardi, to a district judgeship in Delaware. The two nominations ended up getting paired: Boyle and Longobardi were nominated on April 4, 1984, had their confirmation hearings together one week later, were reported out of committee the very next day, and were confirmed by voice vote on April 24.

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Having enjoyed a remarkably swift confirmation process in 1984, Judge Boyle would go on to experience the opposite extreme.

In October 1991, George H.W. Bush nominated Boyle to one of four new seats on the Fourth Circuit. Biden, as Judiciary Committee chairman, promised Helms that Boyle would receive a hearing and vote. But he reneged on his commitment, and Boyle’s nomination died of inaction at the end of Bush’s presidency.

Angry at Democrats’ obstruction of Boyle’s nomination, Jesse Helms prevented the Senate from confirming anyone to that seat (which the Fourth Circuit denominates as Seat 15) throughout the eight years of Bill Clinton’s presidency. He also prevented the Senate from confirming a Clinton nominee to a second Fourth Circuit vacancy that arose in North Carolina in 1994, when Judge James D. Phillips Jr. took senior status.

Helms’s obstruction became embroiled in racial politics, as Clinton was eager to appoint the first African American to the Fourth Circuit. Clinton nominated James A. Beaty Jr. to the Phillips vacancy in 1995 and James Wynn to that same vacancy in 1999. Clinton nominated Rich Leonard (not an African American) to Seat 15 at the end of 1995. When that nomination failed, Clinton and Helms couldn’t reach a deal on any other nominee, so in mid-2000 Clinton ended up shifting the seat to Virginia (it’s custom, not law, that associates federal appellate seats with particular states) and nominating Roger Gregory to fill it. And after the Senate didn’t act on that late nomination, Clinton on December 27, 2000 recess-appointed Gregory to the seat.

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George W. Bush extended an olive branch to Senate Democrats by including Roger Gregory (and another Clinton appointee, Barrington D. Parker Jr.) in his initial slate of eleven appellate nominees. Bush’s peace plan for the Fourth Circuit combined the nominations of Gregory and Boyle. His nomination of Gregory to a lifetime seat offered the promise that Gregory would not have to leave the court when his recess appointment expired at the end of 2001. His nomination of Boyle to the Phillips vacancy would win Helms’s support.

As we have seen, the major flaw in Bush’s peace plan is that its provisions were not interlinked. So when Democrats gained control of the Senate and raced to confirm Gregory, Boyle was left in the lurch.

One puzzle I have tried to figure out is how Jesse Helms, who was famous (or notorious) for obstructing Senate proceedings, failed to gain leverage for Boyle. Helms evidently made no effort to block Gregory’s confirmation and even voted in favor of it. The short answer to the puzzle appears to be that Helms, who would soon turn 80 and who had decided to retire when his term expired in January 2003, had suffered a significant decline in his vigor.

As they did with respect to many of Bush’s appellate nominees, Senate Democrats refused to give Boyle a hearing in 2001 or 2002. Republicans regained control of the Senate in 2003, but Boyle still did not receive a hearing in 2003 or 2004. Elizabeth Dole succeeded Helms in the Senate, but she had no particular stake in Boyle’s nomination, and John Edwards, the other senator from North Carolina, refused to return a blue slip to the Judiciary Committee.

Boyle finally had his confirmation hearing in 2005, after Republican Richard Burr won the Senate seat in North Carolina that Edwards had vacated. But by this point Boyle had all the stigma of being a Helms protégé and none of the benefit. “Jesse Helms should not be awarded a living legacy on [the Fourth Circuit],” the Leadership Conference on Civil Rights declared in its opposition to Boyle’s nomination. Boyle’s critics attacked him on his supposed hostility to civil rights, and that attack mobilized Democrats against him and deterred Dole and Burr from fighting on his behalf. So even though the committee favorably reported Boyle’s nomination to the Senate floor in June 2005, the Senate took no action on his nomination through 2006.

Democrats won back control of the Senate in the 2006 elections, and the White House announced that it would not renominate Boyle.

George W. Bush’s nomination of Boyle stands as the longest federal appellate nomination never to be acted on by the Senate. (For this purpose, I am treating as a single nomination what were technically, because of nominations that the Senate returned, six successive nominations that the White House made between 2001 and 2006.)

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In 2007, Bush nominated federal district judge Robert J. Conrad to the Phillips vacancy on the Fourth Circuit, but Patrick Leahy, chairman of the Judiciary Committee, refused to give Conrad a hearing. (Perhaps more on Conrad’s nomination in a later post.)

In 2009, Barack Obama nominated James Wynn to the Phillips vacancy—the very seat to which Clinton had nominated him a decade earlier. The Senate confirmed Wynn’s nomination in 2010. Sixteen years after Judge Phillips took senior status, his seat was filled.

In May 2024, Judge Boyle marked his 40th anniversary as a federal district judge. He continues in active service.