The Obfuscation Report

Key Bush judge under ethics cloud
Following a Salon report, top Democrats say Bush nominee Terrence Boyle's record is "outrageous" and that he has "no place on the federal bench."

By Will Evans

May. 03, 2006 | Key Democrats denounced Terrence Boyle on Capitol Hill Monday and Tuesday, after a Salon report revealed that the controversial judge, nominated to one of the nation's highest courts by President Bush, violated federal law on conflicts of interest. As the debate over Boyle heated up, the White House acknowledged that Boyle should have recused himself in cases involving companies in which he owned stock -- but continued its support of the nominee.

Sen. Patrick Leahy of Vermont, the ranking Democrat of the Judiciary Committee, blasted Boyle on the floor of the Senate Monday, calling him "somebody who has violated every judicial ethic you can think of."

Leahy called it "chutzpah beyond all understanding" that Boyle, in one case, bought stock in General Electric while presiding over a lawsuit against the company -- and just two months later threw out most of a disability claim against the company. "Now, in the first year of law school you might get an example like this because it is so clear-cut and easy to understand," Leahy said. "This is amazing -- amazing -- notwithstanding all the other conflicts of interest he had in other cases. Whether or not it turns out that Judge Boyle broke federal law or canons of judicial ethics, these types of conflicts of interest have no place on the federal bench."

Also on Monday, the liberal advocacy group Alliance for Justice called on Bush to withdraw Boyle's nomination, citing the conflicts of interest.

Minority Leader Harry Reid of Nevada added to the onslaught on Tuesday, saying of Boyle, "I can't imagine how President Bush could bring him to the Senate for confirmation." Reid ran down a list of Democratic objections to Boyle, including his rulings on civil rights cases, but called the Salon report revealing Boyle's record of judicial conflicts of interest "the clincher."

"If this guy deserves to be a federal district court judge, I don't know what a federal district court judge is all about," Reid said. "He not only shouldn't be a trial court judge as he is, but to think that he should be elevated to a circuit court of appeals is outrageous."

The White House will stand by Boyle's nomination, said spokeswoman Jeanie Mamo.

"There were a handful of cases over the years where it appears that recusal was warranted," she told Salon. "These are mistakes that happened to many judges ... Judge Boyle has an excellent reputation for fairness and integrity -- that shouldn't be destroyed by mistakes in a tiny fraction of the thousands of cases on which he has sat."

Mamo called Salon's report "an effort to distract from the merits of his nomination," saying that Boyle "never intentionally participated in any matter in which he should have recused himself."

But if Boyle didn't know he had financial interests in a company when he sat on the case, he wasn't complying with another part of the law that instructs judges to monitor their finances to avoid conflicts, said professor Leslie W. Abramson, a legal ethics expert at the University of Louisville's law school. "Some people forget that, in the words of the Supreme Court, the appearance of impartiality is as important as the fact of impartiality itself," Abramson said.

Nevertheless, North Carolina's Republican senators also reaffirmed their support of Boyle.

"Senator Dole was just made aware of these allegations through press reports," according to a statement released by Sen. Elizabeth Dole's office Monday. "Everything she knows about Judge Boyle suggests that he is a man of integrity who abides by the highest ethical standards, and she continues to be strongly supportive of his nomination."

The longtime North Carolina federal district court judge, a one-time Jesse Helms staffer, was first nominated to the 4th Circuit Court by President George H.W. Bush in 1991. But he has been blocked for years by Democrats, who regard him as an unwavering foe of civil rights. George W. Bush nominated Boyle again in 2001. In 2005 he was approved on a party-line vote by the Senate Judiciary Committee, and awaits a vote on the Senate floor, which could come soon. The new revelations about his ethics record, however, appear to have added a new dimension to the long-running ideological battle over his court appointment.

A Judiciary Committee staffer who was not authorized to speak on the record said that of all the conflicts of interest that have come up with judicial nominees, Boyle's record seems "worse than most" because he bought stock in General Electric in the middle of a case against the company.

The lawyer who sued General Electric in that case, Andy Whiteman, was quoted in the Raleigh News & Observer Tuesday as saying Boyle was fair to his client, and that Boyle had indicated how he would rule in the case before he bought the stock. "To say he would be somehow conflicted by that is, really, kind of silly," Whiteman said, also noting that he is a Democrat.

But the widow of the G.E. employee who hired Whiteman to sue General Electric told Salon that the lawyer doesn't care about the ethical conflict because he and the judge are just part of an "old boys club." Martha Bursell, who described herself as a proud Republican, added: "If it's not legal, wrong is wrong and right is right. The rules should apply to everybody the same."

Whiteman, who has not responded to repeated requests for comment from Salon about Boyle's role in the case, also told the Raleigh News & Observer that he would not have asked Boyle to recuse himself even if Boyle owned the stock at the beginning of the case.

The law, however, mandates that a judge recuse himself from such cases even if the lawyers don't mind his conflict of interest. The only way a judge can stay on the case is for the judge to get rid of his financial interest.

"It's a violation of the law. It's not waiveable and it's the judge's responsibility to take himself off the case," said Cynthia Gray, director of the Center for Judicial Ethics of the American Judicature Society. "There are newspaper stories every year about judges not [recusing themselves] and every year they say it's a mistake … but nothing's being done to prevent these mistakes from happening," she said. "Mistakes can be made but that they're not taken seriously is something of more concern."

Frist reportedly wants a floor vote on Boyle and other controversial nominees to energize the conservative base heading into the November elections. But with revelations of Boyle's conflicts, the Republican leadership might back off now, said Jennifer Duffy, editor of the nonpartisan Cook Political Report in Washington.

"If Boyle hits a snag, somebody else will go ahead of him," she said. "If Boyle has problems other than something ideological in nature, that might not be worth fighting about. Frist has shown he's been willing to fight on nominees that Democrats oppose strictly on ideological grounds, but if Boyle has other problems it makes it a different case."

On April 18, a Frist aide told Washington publication CongressDaily that the majority leader plans to push through a floor vote on Boyle and another controversial nominee, Brett Kavanaugh, in May. On April 19, Boyle received a letter from Salon and the Center for Investigative Reporting, detailing the cases involving his conflicts of interest, and asking for a response. On April 26, Frist's office announced that the majority leader would move forward on scheduling a May vote for Kavanaugh, but would wait to schedule Boyle.

Frist's office has not yet scheduled a vote on Boyle, and has not responded to Salon's requests for comment on Boyle's conflicts of interest.