Senate Sends Controversial Nominees Back to the President

By virtue of the Senate's month-plus summer recess, Democratic senators invoked Senate Rule 31, Section 6 this morning to send five controversial judicial nominations back to the President, who must now resubmit them to the Senate if he continues to want to push them. Here are the returned nominees:

· Terrence W. Boyle, of North Carolina, was nominated to the Fourth Circuit in May 2001. His nomination, which was pending on the Senate floor, has drawn opposition from a large combination of civil rights and law enforcement organizations. The opposition is based on his unusually high reversal rate, his record of dismissing civil rights actions in defiance of clear congressional mandates and binding precedents, and his routine subversion of clear procedural rules in other cases where he has denied aggrieved parties their day in court. More recently, he has been criticized for breaking with ethical and legal obligations by failing to recuse himself in nine cases involving companies in which he held a financial interest. If President Bush renominates him, he will probably go back to the Senate floor in pretty short order after being moved through committee on another 10-8 party line vote.

· William James Haynes, II, of Virginia, was nominated to the Fourth Circuit in September of 2003. His nomination was pending before the Senate Judiciary Committee, which recently held a second hearing to address evidence that Haynes was one of the chief architects – and one of the chief defenders – of the Bush Administration’s controversial, now largely repudiated policies regarding the treatment of military detainees. His nomination has been widely criticized by Democrats, a number of retired military officials, and even members of the President's own party, including South Carolina Senator Lindsey Graham and presidential hopeful John McCain.

· William Gerry Myers, III, of Idaho, was nominated to the Ninth Circuit in May of 2003. His nomination was pending on the Senate floor after having been filibustered in the last Congress and then voted out of Committee along party lines this Congress. Formerly the head lawyer in the Bush administration's Interior Department, Mr. Myers has drawn intense opposition from both Native American and environmental interests. They have expressed concerns about his harsh public criticism of environmental protections while in private practice and about actions he took while a government official that dovetailed with those criticisms. Opposition to his nomination has been so intense that he was specifically excluded from the "Gang of 14" compromise that ended filibuster efforts against several other nominees. Some speculate that because of the nomination's extremely dim prospects, the President may not resubmit it, so as to open the door for confirmation of....

· Norman Randy Smith, of Idaho, was nominated to a "California seat" on the Ninth Circuit and was pending on the Senate floor. Senator Diane Feinstein has opposed the nomination on that basis. If the President nominates Judge Smith to the "Idaho seat" for which Mr. Myers was tapped, Senator Feinstein will likely withdraw her objections and he will be confirmed.

· Michael Brunson Wallace, of Mississippi, has yet to receive a hearing from the Senate Judiciary Committee for his nomination to the Fifth Circuit. The ABA unanimously rated him unqualified for the job, finding that he lacks "judicial temperament " -- i.e., that many judges and lawyers who know him have expressed serious concerns about his commitment to equal justice, his open-mindedness and his freedom from bias. It is only the second time in some 50 years that the ABA has unanimously rated a circuit court nominee not qualified.

The Senate gave unanimous consent to retain the President's other nominations.