CIR: Judicial Independence

Re-airing of CIR doc reveals Justice Kennedy's concerns about campaign cash

Dan Noyes — Thu, 18 Feb 2010 17:34:48 -0800

CIR’s television documentary Justice for Sale, a 1999 co-production with Frontline and Bill Moyers as correspondent, receives a timely rebroadcast on the February 19, 2010 edition of Bill Moyers’ Journal (in an edited version revised to fit the Bill Moyers’ Journal format). It is timely because Supreme Court Justice Anthony Kennedy recently cast the key swing vote in a Supreme Court decision freeing up business and special interest contributions to political campaigns. In the 1999 Justice for Sale broadcast, Kennedy told Moyers of his deep concern about the negative effect of contributions in state judicial elections and warned they can cause the perception or reality that judicial independence is undermined. Clearly Justice Kennedy’s concerns for judicial elections do not bridge the divide between his warning on that issue and his free-swinging approach to political campaign contributions as shown in his opinion announced last month in Citizens United v. Federal Election Commission, which erased two of the court's precedents and decades of legislative restrictions on corporate and special interest spending in political campaigns. Now it’s up to the legislative branch to go back to the drawing board and attempt to design new campaign finance laws that will create the public perception or political reality that Congress and the President are not the captives of special interests and the highest bidder. Justice for Sale is one example in a long line of CIR work that examines the influence of special interests and campaign cash on public affairs. Award-winning Frontline documentaries The Best Campaign Money Can Buy (1992) and So You Want to Buy a President? (1996) examined presidential campaigns. A series of stories in Salon.com in 2004 and 2005 examined the influence of corporate and special interests on the federal judicial nomination process: "Courting Big Business," "Big Biz Battles for Bush's Bench," "The Moneyed Scales of Justice," and "Harriet Miers Is All Business." Other stories have looked at issues ranging from Senate Minority Leader Mitch McConnell’s (R.Ky) fundraising methods to how local real estate contributions affect zoning and health and safety issues. Perhaps the one sure bet to come out of the Supreme Court decision to free up special interest money in political campaigns: CIR reporters and others will have their hands full trying to keep up with the resulting stories. Dan Noyes was executive producer for CIR for Justice for Sale. He is a co-founder of CIR and for 30 years was on CIR's staff as a reporter, then editor, and served three stints as executive director or acting executive director.

Beijing Olympic Chief Linked to Torture

Carrie Ching — Wed, 23 Apr 2008 16:29:03 -0700

The president of Beijing's Olympic Organizing Committee was once found liable for torture in a U.S. federal court, a review of court records by the Center for Investigative Reporting has found. The 2004 judgment against Liu Qi -- a member of the country’s powerful Politburo -- received little media attention at the time. The U.S. Olympic Committee was unaware of the allegations, according to recent interviews. In an extensive legal opinion, the U.S. District Court in San Francisco determined that Liu was responsible for the illegal detention and torture of two Chinese nationals and a sexual assault against a French woman in China. The two Chinese women later sought refuge in the United States. “What difference does it make?” asked Anita L. DeFrantz, the senior U.S. member of the International Olympic Committee, when informed of the judgment against Liu. “I care very deeply about human rights,” DeFrantz said. “[But] this doesn’t tarnish the Games.” Human rights advocates, on the other hand, said the 2004 court finding against Liu reflects badly on the Olympic movement in light of Liu’s involvement in the 2008 Summer Games. “These Games are pretty damned tarnished,” said Sophie Richardson, Asia advocacy director for Human Rights Watch, upon learning of the court’s judgment against Liu. Human Rights Watch has criticized the International Olympic Committee for choosing China—which has long been criticized for its human rights record—as host of the Summer Games. “The IOC is operating in a moral void,” she said. Liu, 65, the man responsible for preparing Beijing for the 2008 Summer Games, is one of China’s most prominent political figures. After serving as mayor of Beijing, Liu was promoted in 2002 to Beijing Communist Party secretary and given a seat on the country’s 25-member Politburo, China’s top decision-making body. Last May, Liu made Time magazine’s “Time 100,” a list of "100 men and women whose power, talent or moral example is transforming the world." Liu’s legal troubles in the U.S. began in 2002 when members of the Falun Gong spiritual movement sued him in San Francisco federal court under laws that allow foreigners to take legal action against their alleged torturers. Liu was served with legal papers at San Francisco International Airport while en route to the 2002 Winter Olympics in Salt Lake City. The Chinese government in 1999 outlawed the Falun Gong along with certain Christian groups. The U.S. State Department has since reported in its annual International Religious Freedom reports that Falun Gong members have been subjected to a range of harassment and torture by the Chinese government, including shock treatments, and that some have died from repeated physical abuse. The lawsuit alleged that as mayor, Liu directed security forces to violently crush the Falun Gong. The plaintiffs claimed that Liu’s forces subjected them to severe beatings, sexual abuse and “electric shocks through needles placed in [the] body.” Those suing included two Chinese nationals, two Swedes, one French woman and a dual citizen of Israel and the U.S. Liu never responded in court to the accusations, but the Bush administration entered the fray, urging the court to dismiss the case. The lawsuit "is not the best way for the United States to advance the cause of human rights in China," the administration argued in court filings. "The United States Government has emphasized many times to the Chinese Government, publicly and privately, our strong opposition to violations of the basic human rights of Falun Gong practitioners in China.” "We would respectfully urge the Court to fashion its final orders in a manner that would minimize the potential injury to the foreign relations of the United States," the State Department said. Despite the administration’s arguments, the court determined that the plaintiffs were subjected to “torture, cruel, inhuman and degrading treatment, and arbitrary detention,” according to the 2004 decision. Liu was held liable. But the default judgment -- Liu did not contest the charges in court -- was a hollow victory, said David J. Bederman, an international law expert and professor at Emory Law School. “[The plaintiffs] got their day in court, but they didn’t really get anything else.” No damages were awarded. DeFrantz, the senior U.S. member of the International Olympic Committee, said this week that Liu’s alleged involvement in human rights violations will not negatively impact the 2008 Summer Games. “No one will remember who the organizers were,” DeFrantz said.

The High Price of Diplomacy with China

Carrie Ching — Mon, 21 Apr 2008 14:09:17 -0700

The Bush administration is trying to scuttle a federal human rights lawsuit that threatens to embarrass one of China’s top political leaders. The administration says the case could jeopardize trade and “has already had a chilling effect on U.S.-China relations,” documents show. The lawsuit, which was filed in U.S. district court, accuses Bo Xilai—a member of China’s elite Politburo and until recently the country’s trade minister—of controlling and directing forced labor camps where inmates were beaten, suffocated and killed. The abuses occurred while Bo was governor of Liaoning province between 2001 and 2004, before he was named China's minister of commerce, according to the complaint. If the lawsuit goes forward, the Bush administration argues it could create a “diplomatically undesirable inquiry” -- into Bo’s -- “responsibility for alleged torture and extrajudicial killing,” according to court filings. These “difficult and sensitive questions,” the administration said, “need not be confronted at this time.” The plaintiffs are all part of the Falun Gong religious movement, members of which according to a 2007 U.S. State Department report were subjected to shock treatments, forced abortions and “credible reports of deaths due to torture and abuse” at the hands of Chinese authorities. Protestant and Catholic priests and their followers were also abused, according to the annual report, which echoed those from previous years. The United Nations, in its own report on global torture, last year alleged that while Bo was governor of Liaoning province, Falun Gong members were killed for their hearts, livers and other organs, which were removed for reuse in transplant patients. At the time, the Chinese dismissed the allegations of organ harvesting as “rumor.” Despite the reports, the Bush administration has asked Judge Richard J. Leon, who is hearing the Bo case in the District of Columbia federal court, to dismiss it, saying the suit has had “immediate adverse foreign policy consequences.” “It will undercut the U.S. government’s efforts to engage China on human rights issues, including its treatment of the [Falun Gong],” according to diplomatic correspondence reviewed by the Center for Investigative Reporting. “It could also adversely affect U.S. engagement with China on a broad range of other issues, including counter-terrorism, law enforcement, economics and trade, trafficking in persons, adoption, narcotics suppression, and nuclear proliferation.” The civil action against Bo, 58, was filed under federal statutes that allow noncitizens to sue alleged torturers in U.S. courts. It comes at a delicate time for U.S.-China relations, and the Bo case offers a rare glimpse into the administration’s strategy to aggressively protect its financial and diplomatic relationship with a country long considered an ideological nemesis. During Bo’s tenure as commerce minister, U.S.-China trade increased 67 percent, to nearly $387 billion in 2007. China is now America’s second-largest trading partner. Its recent crackdown on protesters in Tibet has heightened worldwide concern and attention regarding its human rights policies. The focus comes as the Communist regime prepares to host this year’s Summer Olympics. Behind Closed Doors Four members of the Falun Gong living outside of China filed the lawsuit against Bo in 2004. The case was first reported on in 2006, by the Legal Times trade magazine, and has since received little attention publicly. But privately, the allegations against Bo drew immediate concern at the highest diplomatic levels. Bo was served with the legal papers in an embarrassing episode at the Fairmont Hotel in Washington, D.C. While passing through the hotel lobby, on route to a dinner with the U.S. Chamber of Commerce, “an unidentified man suddenly rushed toward Minister Bo and the Chinese entourage,” according to a complaint letter sent from the Chinese Embassy to the State Department. “Minister Bo and other members of the Chinese entourage swiftly dodged this physical attack.” A U.S. court clerk, however, considered Bo served. As the case moved through the courts, China’s Foreign Affairs Minister Li Zhaoxing warned his U.S. counterpart—Secretary of State Condoleezza Rice—of financial consequences if the case were to proceed, according to a 2006 letter sent directly to Rice. Minister Li described the Falun Gong as a cult and repeatedly called its case a “frame-up” against China. He went on, saying if the case proceeded, it would undermine “our economic and trade ties.” “This is something neither of us wants to see,” the minister wrote. A month later, China’s Justice Minister Wu Aiying wrote then-Attorney General Alberto Gonzales, asking that he give personal attention to the Bo suit and “resolve the case” and suggesting some American legal principles that could be applied in getting it dismissed. The Justice Department has since taken an active role, filing a series of legal briefs urging Judge Leon, who was appointed by President Bush in 2002, to shut down the lawsuit. Because Bo has not responded in court to the allegations, the Bush administration is the only party fighting the suit. Civil cases filed against alleged foreign torturers are infrequent, but it is not uncommon for the U.S. government to oppose such legal actions. Tightening the Noose Falun Gong, an offshoot of Buddhism and Taoism, was officially banned by the Chinese government in 1999, along with certain Protestant and Catholic groups. The government set up a special security bureau to enforce the ban. The State Department—which monitors religious freedoms worldwide—has for years expressed particular concern over China’s repression of “unauthorized” religions. Its 2007 International Religious Freedom Report is strewn with torture references, including “beatings with fists, sticks and electric batons … cigarette burns … and submersions in water or sewage.” The report cites “credible” reports from Falun Gong adherents in the United States who claim that more than 100,000 practitioners have been detained since 1999 and that many “have been subjected to excessive force, abuse, rape, detention, and torture, and that some of [the group’s] members, including children, have died in custody.” According to Scott Flipse, the East Asia program director at the State Department’s Commission of International Religious Freedom, a bipartisan monitoring arm, the abuse is not limited to the Falun Gong. “It is a deteriorating situation for many religious communities. They [the Chinese] are targeting unregistered Protestants, unregistered Catholics and others,” said Flipse. Upsetting Foreign Relations The administration’s arguments against the Bo suit are familiar refrains among critics of the Torture Victim Protection Act and similar laws used to penalize alleged foreign torturers. They argue that plaintiffs and judges fail to grasp the nuances of foreign relations and may in fact undo diplomatic strides gained in private negotiations. “I think you can condemn a country’s practices and use a variety of tools to induce them to improve and still be concerned that you don’t want these ad hoc private-party lawsuits being the vehicle for conducting our foreign relations,” said Curtis A. Bradley, a visiting law professor at Harvard who in 2004 worked in the State Department’s legal advisory office. But some legal specialists said diplomatic and political concerns appear to be distorting the Bush administration’s judgment in this case. Jacques deLisle, a law professor at the University of Pennsylvania and an expert on Chinese and international law, said if the case proceeded, it would be unlikely to impact trade or other relations with the Chinese. “The level of outrage that gets cranked out, I think, is somewhat disingenuous,” he said. “It is possible [for the Bush administration] to explain to China’s government that we do believe in letting these laws on the books operate and letting these litigants have their day in court.” Bo’s Alleged Role The plaintiffs in the Bo case—three of whom are referred to by pseudonyms for fear of retaliation against relatives still in China—contend that as governor, Bo maintained strict control over the persecution of Falun Gong. The complaint alleges that he fired and prosecuted other government officials who refused to execute his Falun Gong policies, which, according to China experts, are often carried out by provincial officials. “There has been a lot of evidence pointing to the provincial government as overseeing these abuses,” said one State Department Asia policy officer who spoke on condition of anonymity because she was not authorized to speak publicly about sensitive diplomatic matters. The plaintiff named is 47-year-old Falun Gong member Li Weixum. She claimed she was beaten with a steel pipe and hung by handcuffs around her wrists until she bled. Another member, arrested with Li, said her head and face were covered with plastic wrap until she fainted. The action was repeated when she regained consciousness. The Falun Gong was formally outlawed by the Chinese government in 1999, along with other religious groups determined to be illegal “cults.” Several Christian groups were included on the list and, according to human rights monitors, are now frequent targets of religious enforcement units known as “6-10 Offices,” named for the month and day in 1999 that the policy went into effect. Members of outlawed religious groups can be sentenced to from three to seven years in work camps that the Chinese government calls “re-education-through-labor” facilities. A Global Campaign The Falun Gong has filed more than 50 human rights lawsuits around the world, seeking damages from Chinese government agencies and officials. Only a handful of suits has been successful. Last fall, an Australian court ruled in favor of Falun Gong members in a torture claim filed against Bo Xilai. Human rights groups, such as Human Rights USA—the group that is representing the Bo case plaintiffs in U.S. courts—are increasingly pursuing alleged human rights abusers in civil arenas, using laws like the Torture Victim Protection Act and the Alien Tort Statute, a controversial law enacted in 1789. “The [Alien Tort Statute] became an effort by human rights activists to incorporate all sorts of ideas from international law into the law of the U.S.,” said Richard A. Samp, chief counsel at the Washington Legal Foundation, a public-interest law firm and free-enterprise think tank. “Ninety-nine percent of [the cases] I think are frivolous.” But foreign officials have begun to accept U.S. jurisdiction in such cases. In 2006, the ruler and deputy ruler of Dubai hired the law firm DLA Piper when they were accused of trafficking boys to be used as camel jockeys in the United Arab Emirates. The case—filed in federal court in Florida—was eventually dismissed. A similar suit is ongoing in Kentucky. In another case, the then-prime minister of Cambodia hired an American law firm to defend against allegations of human rights abuses in a lawsuit filed in New York. A ‘Special’ Immunity The Bo suit in the end may not hinge on foreign policy implications, but on whether Bo is immune from litigation filed in U.S. courts. He was served with the civil complaint while visiting the U.S. on official government business, as part of the U.S.-China Joint Commission on Commerce and Trade in 2004. Heads of state and diplomats are by law immune from most criminal and civil complaints, but international laws are less clear when it comes to lower-level government officials like cabinet members. In a similar case in 2004, a federal judge in the Northern District of California ruled that two Chinese officials—the then-mayor of Beijing and the then-deputy governor of Liaoning province—were not immune from torture suits. The judge, Edward M. Chen, issued a default judgment in favor of the plaintiffs, practitioners of Falun Gong, but did not award any damages. The former Beijing mayor, Liu Qi, is now president of the Beijing Organizing Committee for the 2008 Olympics. In the Bo case, the Justice Department is claiming Bo cannot be sued because of what it calls “special missions immunity,” part of a treaty the U.S. has never signed. But the Bush administration says such immunity is legitimate under customary international law, and that the president can decide when to invoke the rule. “Such a determination has been made in this case with respect to Minister Bo,” according to legal filings. “The United States must be able to host foreign officials without the prospect that they may be served with process in a civil suit.” The government also claims it “could expose U.S. officials visiting other countries to suits arising from their performance of official U.S. government functions.” Human rights groups, however, argue that the U.S. government is reinforcing human rights abuses by maintaining positive relationships with alleged torturers. “High-level officials from foreign governments who are committing human rights abuses should be very fearful of entering this country, or any other country,” said Morton Sklar, executive director of Human Rights USA. Judge Leon has been deliberating over the Bo case since last June, and by law it is his choice whether to defer to the views of the Bush administration and dismiss the suit. A spokeswoman for Judge Leon would not say when he plans to make a decision. The State Department’s legal advisory office would not comment on the record for this article, instead pointing to its arguments already filed in court. China experts say it is unlikely Bo will ever be questioned in the affair. “I don’t think any Chinese government official would even spend time in hiring lawyers, or coming to America to give a deposition or show up in court,” said Siva Yam, president of the U.S.-China Chamber of Commerce. “If they do, they will lower their status.” James Sandler is a reporter at the Center for Investigative Reporting. Previously, Sandler was part of the New York Times team awarded the 2004 Pulitzer Prize for Public Service. Shahien Nasiripour, an intern at CIR, contributed reporting for this story. CIR is a nonprofit, nonpartisan news organization dedicated to investigative journalism since 1977.

The Rise of an Alleged Torturer: Bo Xilai

Carrie Ching — Mon, 21 Apr 2008 12:21:30 -0700

One of China's most powerful political figures is facing allegations in a U.S. court that he directed a torture campaign against religious followers. The Bush administration is trying to get the case thrown out. Bo Xilai, the son of one of modern China's most influential leaders, has thus far led a life of privilege and entitlement. It's also been marked by controversy. Bo Xilai, 58, is the eldest son of Bo Yibo, one of the so-called Eight Immortals, Communist Party leaders and revolutionaries who helped usher in China's booming market-oriented economy. Bo Yibo was a friend of former Chairman Mao Zedong and an influential adviser to former Chinese leaders Deng Xiaoping and Jiang Zemin—relationships that have no doubt helped fuel Bo Xilai's rise. Though nepotism is frowned upon in China's political establishment (the offspring of party leaders are often derided as "princelings"), it hasn't derailed Bo Xilai, analysts say. He was mayor of the city of Dalian in the 1990s, governor of Liaoning Province thereafter and the country's trade minister from 2004 to 2007. Today he's the top official in one of China's most populous cities, Chongqing, and a member of the country's ruling Politburo. Bo turned Dalian, formerly a sleepy backwater, into an economic powerhouse. He was responsible for "transforming the center of Dalian, with architectural styles reminiscent of the Mediterranean and Sweden, making it a unique city in China," according to a report on the website for the U.S. Consulate in Shenyang. "Bo's reputation as an effective and forward-thinking politician is based on his role in Dalian's transformation." His success in Dalian earned him a promotion to the governor's post in Liaoning. His subsequent reforms there helped the province become one of China's largest industrial centers. The resulting economic boom, though, came against the backdrop of controversy. Bo was appointed governor in the wake of a political corruption scandal in the province and, according to published reports, is said to be responsible for the imprisonment of a Chinese journalist. Investigative reporter Jiang Weiping wrote that Bo covered up corruption among friends and relatives while mayor of Dalian. Jiang was accused of revealing state secrets and, through his stories, inciting subversion. He served five years in prison and was freed in January 2006. The Bush Administration had pressed for his release. In 2004, Bo was appointed minister of commerce, one of the country's most visible and prestigious posts. China's trade with the U.S. has since increased 67 percent, and China recently passed the U.S. as the world's second-largest exporter with $1.2 trillion in goods in 2007, according to the World Trade Organization. Late last year, Bo left the Commerce Ministry and was appointed Communist Party secretary of Chongqing, said to be the world's fastest-growing urban center and considered to be China's next boomtown (following the likes of Beijing, Shanghai and Shenzhen). He also was promoted to China's powerful Politburo, the country's top decision-making body. Chongqing, a provincial-level municipality of 32 million people, has been referred to as "China's Chicago" because, like Chicago once was, it is "a gateway to vast and largely undeveloped lands to its west, a hub where the traffic of roads, rail lines and waterways converged, and a center for business where ambition eviscerated risk." Bo is widely considered to be a rising star. He's comfortable with the media and, given his success as China's trade minister, equally comfortable with foreign officials and business leaders. There are rumors that he could one day become Premier. It remains to be seen whether this latest controversy will impede his ascent up China's political hierarchy.

The High Price of Diplomacy with China: Documents

Carrie Ching — Fri, 18 Apr 2008 15:43:09 -0700

Four members of the Falun Gong filed this complaint in federal court against Bo Xilai, China’s former minister of commerce. They alleged that Bo—while serving as a provincial governor from 2001 to 2004—oversaw torture and executions at forced labor camps. The case was filed under the Torture Victim Protection Act and the Alien Tort Statute. April 22, 2004

The Chinese Embassy in Washington, D.C. faxed this diplomatic complaint letter to the State Department. The dispatch excoriates the U.S. for not protecting then-Commerce Minister Bo Xilai from being served with court papers while he walked through the lobby of the Fairmont Hotel in Washington.
April 26, 2004

The Chinese sent this letter to the Legal Advisor at the U.S. State Department outlining reasons to push for the suit’s dismissal. “Should the US court adjudicate this trumped-up ‘lawsuit’, it would send out a deadly wrong signal to the ‘Falun Gong’ cult … and severely undermine the common interests of the two countries,” the Chinese wrote. August 23, 2004

U.S. Magistrate Judge Edward M. Chen issued this opinion in a torture suit filed against the then-mayor of Beijing and the then-deputy governor of Liaoning Province. The judge found that the defendants were not immune from the suit and he issued a default judgment against them. This case is unrelated to the case filed against Bo. October 28, 2004

Washington, D.C. federal judge Richard J. Leon sent this letter to the State Department asking for its views on the lawsuit’s effect on foreign relations and issues of immunity for Bo. February 24, 2006

China’s minister of foreign affairs sent this letter to Secretary of State Condoleezza Rice. The letter threatened a deterioration of U.S.-China trade relations if the Falun Gong lawsuit were to succeed. The foreign affairs minister requested that Secretary Rice ask the judge to dismiss the suit. March 30, 2006

China’s Minister of Justice Wu Aiying sent this letter to then-Attorney General Alberto Gonzalez, asking that he intervene in the lawsuit filed against Bo. In the letter, Wu suggested several American legal principals that could be used to get the case dismissed. April 29, 2006

The State Department’s Legal Advisor John B. Bellinger, III sent this letter to the Justice Department asking that it intervene in the Bo case to seek the lawsuit’s dismissal. The letter outlines a host of “significant adverse foreign policy implications” and asks the Justice Department to suggest to the judge that Bo is immune from the suit. July 24, 2006

The Justice Department filed this legal brief with Judge Leon asking that he find Bo immune from being sued and dismiss the suit without addressing the “diplomatically undesirable” issues of “torture and extrajudicial killing.”July 24, 2006

The United Nations’ Special Rapporteur on Torture Manfred Nowak conveyed in this report to the UN General Assembly “reliable and credible” allegations of organ harvesting (of hearts, kidneys, livers, and corneas) in China’s Liaoning Province beginning in 2001, the year Bo began his tenure as governor. The allegations and China’s response begin on page 60. March 20, 2007

Bush nominates two who gave him money

Will Evans — Fri, 16 Nov 2007 00:00:00 -0800

President Bush chose to fill two high-level positions yesterday with federal judges who had given him campaign contributions while under consideration for their judgeships. Bush nominated Judge Gene Pratter, of Pennsylvania, to the 3rd U.S. Circuit Court of Appeals, a level just below the U.S. Supreme Court. Pratter, who was featured in the CIR report, “Money Trails to the Federal Bench,” gave $2,000 to Bush in 2003, after interviewing with the White House for her judgeship. Bush also picked Judge Mark Filip, of Illinois, to be deputy attorney general, the No. 2 spot in the Justice Department. Filip gave Bush $2,000 in 2003, after the president nominated him for his judgeship, as earlier reported by CIR. There are no laws against political contributions by a judicial candidate, but some ethics experts and federal judges say that it is inappropriate. Pratter also gave $1,500 to Sen. Arlen Specter (R-Penn.) in 2003, around the time she interviewed for her district judgeship with Specter’s bipartisan selection panel. To fill Pratter’s spot on the federal district court, Bush nominated an attorney who also gave money to Sen. Specter while reportedly being pushed for a judgeship by the senator. Carolyn P. Short gave Specter $2,300 on March 29, 2007, though he is not up for reelection until 2010. It was Short’s first federal donation since 1998, when she gave to a Democrat, according to government records. The Legal Intelligencer reported that Specter was advocating for a Short judgeship as early as fall 2006. Short served as general counsel to the Senate Judiciary Committee during 2005 and 2006 at Specter’s request. Specter is currently the ranking Republican on the committee, which reviews Bush’s nominations. Short did not respond to a call and email requesting comment. In a 2006 interview with CIR, Specter said political donations are “not a factor” in who gets recommended for judgeships. He said that once an individual becomes a “prospect” for a judgeship, that person should not continue to make contributions. When informed that a few Pennsylvania judges had given donations after that point, Specter said, “If I had known about it, I would have returned their contributions. I don’t want anybody to think that it's relevant.” To read the comments of federal judges on the issue of campaign contributions by judicial candidates, click here.

Whistleblower Links and Resources

Carrie Ching — Mon, 29 Oct 2007 16:54:21 -0700

WHISTLEBLOWER SUPPORT/ADVOCACY GROUPS GAP: Government Accountability Project GAP is one of the country’s oldest whistleblower public interest groups. They advise whistleblowers and occasionally represent them in court. POGO: Project On Government Oversight POGO investigates government corruption and misconduct. Their website contains a federal contractor misconduct database. PEER: Public Employees For Environmental Responsibility PEER advocates blowing the whistle anonymously and focuses on government employees whose work is related to the environment. WhistleblowerLaws.com This website, sponsored by a for-profit law firm, has helpful information and a comprehensive list of America’s many whistleblower laws. NWC: National Whistleblower Center The NWC is a whistleblower rights and public education organization. FedSpending.org FedSpending has a useful database of U.S. Government contractors. The website is part of OMB Watch. HonestChief.com This website was created by former U.S. Park Police Chief Teresa Chambers. It documents her fight to get back her job. GOVERNMENT AGENCIES Office of Special Counsel The United States Office of Special Counsel is an independent executive branch agency charged with investigating whistleblower complaints and improper political activities. Merit Systems Protection Board The Merit Systems Protection Board is an independent administrative court system in the executive branch. The MSPB hears cases brought by federal employees who believe they were unfairly disciplined. U.S. Court of Appeals for the Federal Circuit The Federal Circuit Court of Appeals is the only U.S. appeals court allowed to rule on cases appealed from the MSPB by federal employee whistleblowers. DOCUMENTS CRS Report: National Security Whistleblowers This Congressional Research Service Report reviews tactics of retaliation and the legal system set up to protect federal employees who work for America’s national security agencies. CRS Report: The Whistleblower Protection Act This Congressional Research Service Report reviews the effectiveness of the main whistleblower law intended to protect non-national security federal employees. This report also offers a summary of new legislation, the Whistleblower Protection Enhancement Act of 2007. Senator Nixon’s Proposed Whistleblower Law This is a copy of the comprehensive whistleblower protection law Senator Richard M. Nixon introduced in April 1951. The law was introduced ahead of congressional hearings likely to reflect negatively on the Democratic Administration of President Harry Truman. Senator Nixon’s Statement This is a copy of the statement Senator Richard M. Nixon released on April 26, 1951, in support of his proposed whistleblower protection law. Summary: Whistleblower Protection Enhancement Act of 2007 This document summarizes the U.S. House version of proposed legislation intended to strengthen protections for federal employee whistleblowers. Full Text: Whistleblower Protection Enhancement Act of 2007 This document is the full text of the U.S. House version of proposed legislation intended to strengthen protections for federal employee whistleblowers. Full Text: Federal Employee Protection of Disclosures Act This document is the full text of the U.S. Senate version of proposed legislation intended to strengthen protections for federal employee whistleblowers. Statement of Administration Policy: Whistleblower Protection Enhancement Act of 2007 This document outlines the Bush Administration's points of opposition to the Whistleblower Protection Enhancement Act of 2007.

How to look up your judge

Carrie Ching — Mon, 22 Oct 2007 14:44:27 -0700

When checking on potential financial conflicts, a good place to start is the judge’s investment list. Every federal judge and magistrate judge must submit a report of their financial interests every year to the Administrative Office of the United States Courts in Washington D.C. Filings from the last six years are kept on file there. Apart from annual reports, judges file a nearly identical financial disclosure form when nominated for a judgeship. Start with his or her financial disclosure forms, which list stock holdings.

Download this request form: http://www.uscourts.gov/forms/AO010a.pdf

Print and fax the completed form to (202) 502-1899 and mail the original to: Office of the Committee on Financial Disclosure, Administrative Office of the United States Courts, Suite 2-301, One Columbus Circle, N.E., Washington, D.C. 20544

You can request up to the last 6 years of filings

The office will take about two weeks before notifying you of how much your request will cost (copies are 20 cents per page). During this time, the judge will be notified who is making the request. Judges also have an opportunity to redact information.

Questions about the request process can be directed to the Committee on Financial Disclosure at (202) 502-1850. Then compare the financial interests to the parties in cases that have come before the judge.

You can look up cases at the judge’s courthouse, or remotely, by using the online PACER system (Public Access to Court Electronic Records)

Look up the PACER web page for the court you want.

Generally you can search by case number or the name of a party or attorney, but not by the judge’s name. To see if a judge sat on cases involving the companies you are interested in, you must look up each case involving those companies and then check who the judge was.

For questions, contact the PACER Service Center at (800) 676-6856 or (210) 301-6440. Remember:

The law covers federal judges, not state judges. Ethics rules covering state judges may vary.

Check for subsidiaries of the companies too.

Mutual funds are different: generally a judge who invests in a mutual fund can sit on a case involving the mutual fund company or the stocks in the mutual fund’s portfolio

The reinvention of Robert Conrad

Ben Lurie — Mon, 13 Aug 2007 18:18:53 -0700

For political pundits, the worst kind of judicial nominee is one who is bland, who's rarely dragged into the political muck, who's hard to attack or question. Robert Conrad, President Bush's nominee to North Carolina's Fourth Circuit Appeals Court, has worked hard to reinvent himself as a blank face of justice, eschewing his outspoken past. But Conrad's history of passionate editorial writing came to light before he became a United States district judge in 2005, and the same controversial comments will likely make an atavistic appearance at his upcoming confirmation hearings. Conrad's critiques of liberal causes could well stir up the Democratic nest: In 1999, when Conrad was a prosecutor for the U.S. Attorney's Office in Western North Carolina, he went after a group of nuns who opposed the death penalty. In a letter to the editor printed in the Catholic Dossier, he referred to Sister Helen Prejean as a "church-hating nun" and said that her book was merely "liberal drivel." In the late 1980s, while he was in private practice, Conrad attacked Planned Parenthood in an Op-Ed titled "Planned Parenthood: A Radical, Pro-Abortion Fringe Group," Conrad claimed in the Charlotte Observer piece that "Planned Parenthood knowingly kills unborn babies, not fetuses, as a method of 'post-conception' contraception, and to them that's OK." Recently, though, Conrad has tried to detach himself from his past words, saying in 2005: "I believe that my record as a U.S. Attorney demonstrates that I have enforced the law impartially," and that "I have had no occasion to study or form views about Planned Parenthood in the past 15 years." Looking back on his years in the U.S. Attorney's Office, Conrad took great pride in his successful prosecution of the first capital case after North Carolina reestablished its death penalty: he won a sentence of death. In addition, while Conrad was U.S. Attorney, he vigorously pursued immigration violations, as well as robbery and weapons cases, according to data published by the Administrative Office of the U.S. Courts. Currently, no date has been set for Conrad's confirmation hearing before the Senate Judiciary Committee, but for a nominee who has had "no occasion to study or form views" on controversial topics, there remains a line of inquiry senate Democrats may find fruitful.

Stone on the sly

Anna Isaacs — Thu, 19 Jul 2007 15:05:34 -0700

When President Bush suddenly second-guessed himself regarding Justice Sam Alito's replacement on the 3rd Circuit, the rumors abounded. Bush originally nominated Noel Hillman (currently a federal district judge in Camden, New Jersey) for the spot, but then ditched him, with no official statement concerning the hasty change of heart. Hillman apparently had his Justice Department background to blame. His previous position as Chief of the Public Integrity Section, pundits charged, ran him the high risk of too-close-for-comfort questioning by prying Dems on the Senate Judiciary Committee. And so it seems Bush has chosen another tack, dipping instead into the private practice sector of Jersey lawyers to find Shalom D. Stone, whose lack of any government employment makes his nomination as strategic as it is surprising, as he is relatively unknown. Indeed, he remains somewhat of a political enigma: Since he registered to vote in Union County, New Jersey in 1993, he has never declared a political affiliation. And unlike his heavily Democratic colleagues at the law firm Walder, Hayden, & Brogan, Stone has, at least since 1990, never made federal campaign contributions. Don’t fret—he just may have some opinions: proof of possible conservative leanings lies in his reported membership in the New Jersey Lawyers Chapter of the Federalist Society, which could make Stone persona non grata to the Democratic majority. Such an affiliation with the conservative group may add to the ire of Senate Democrats as Bush nominated Stone on the sly; W. eschewed the political courtesy of consulting with Stone’s Democratic home-state senators before announcing his decision.

Money trails lead to Bush judges

Carrie Ching — Wed, 27 Jun 2007 15:14:57 -0700

At least two dozen federal judges appointed by President Bush since 2001 made political contributions to key Republicans or to the president himself while under consideration for their judgeships, government records show. A four-month investigation of Bush-appointed judges by the Center for Investigative Reporting reveals that six appellate court judges and 18 district court judges contributed a total of more than $44,000 to politicians who were influential in their appointments. Some gave money directly to Bush after he officially nominated them. Other judges contributed to Republican campaign committees while they were under consideration for a judgeship. Republicans who received money from judges en route to the bench include Sens. Arlen Specter and Rick Santorum of Pennsylvania, Sens. George Voinovich and Mike DeWine of Ohio, and Gov. George Pataki of New York. There are no laws or regulations prohibiting political contributions by a candidate for a federal judgeship. But political giving by judicial candidates has been a rarely scrutinized activity amid the process that determines who will receive lifelong jobs on the federal bench. Some ethics experts and Bush-appointed judges say that political giving is inappropriate for those seeking judicial office -- it can appear unethical, they say, and could jeopardize the public's confidence in the impartiality of the nation's courts. Those concerns come as ethics and corruption scandals have roiled Washington, and on the eve of midterm elections whose outcome could influence the makeup of the federal judiciary -- including the Supreme Court -- for decades to come. The CIR investigation analyzed the campaign contribution records of 249 judges appointed by Bush nationwide since 2001. The money trail leading from Bush judges to influential politicians runs particularly deep through the political battleground states of Ohio and Pennsylvania. Since 1990, Judge Deborah Cook, who was confirmed to the 6th U.S. Circuit Court of Appeals in May 2003, gave more than $10,000 to three Ohio Republicans who were instrumental in getting her on the bench. One was Sen. George Voinovich, who is chairman of the Select Committee on Ethics. Another was Sen. Mike DeWine, a member of the Judiciary Committee, which is critical to the confirmation of federal judges. The other was Gov. Bob Taft, who gained national notoriety after he was convicted of ethics violations in 2005 for not reporting gifts he received. Cook's contributions included $1,000 to Voinovich and $1,500 to Taft after President Bush had nominated Cook, with their backing, in May 2001. Once on the bench, Cook continued giving, contributing $800 to DeWine in December 2005. Political giving while serving on the federal bench is a violation of the official Code of Conduct for U.S. Judges. The code says that "A judge should not ... solicit funds for or pay an assessment or make a contribution to a political organization or candidate." DeWine's campaign committee returned the money three weeks after Cook made the contribution. Another judge, Christopher Boyko, gave $2,000 to Voinovich in August 2004 -- his first federal contribution on record since 1996 -- less than a month after Bush nominated him for the bench upon the recommendation of Ohio's senators. Another, Judge John Adams, cut a $1,000 check received by Voinovich's campaign committee just two days before Voinovich and DeWine publicly recommended him to Bush in November 2001. "I've been supportive of the Republican Party and President Bush," Adams said, after DeWine and Voinovich recommended him for the judgeship, according to the Akron Beacon Journal. "I'm sure that had some bearing on the selection." About two months later, in January 2002, Adams gave DeWine $1,500, which was returned to him in February. Then, less than a month after his subsequent nomination by Bush in October 2002, Adams gave $250 more to Voinovich. Brian Seitchik, a spokesperson for Sen. DeWine's current reelection campaign, confirmed that the money from Cook and Adams was returned because, at the time it was given, Adams was a judicial candidate and Cook was a sitting judge. "The campaign has operated out of an abundance of caution," Seitchik said, "and we thought it was the prudent thing to do." Adams declined to comment. Cook's chambers faxed an unattributed one-sentence note that appeared to suggest that some of the donations in her name, as identified by public records, were made by her husband. Two written requests to Cook seeking further clarification were not answered. The president selects most federal judges with significant input from U.S. senators of the same party. In Ohio, that process is "totally controlled by party politics," says Tom Hagel, a professor at the University of Dayton School of Law and a part-time trial judge. "If you don't have the blessing of the county and state party chairs you can stop right there," said Hagel, whose brother is Republican Sen. Chuck Hagel of Nebraska. "Believe me, they've got to get approval all the way up the line." Hagel says campaign contributions could play into that process, as a demonstration of "how loyal and appreciative" a judicial candidate is. "That certainly has an appearance of impropriety," he said. "It gives the impression that the senators' decision-making process could be influenced by money." In some cases from around the country, judicial candidates gave money directly to the president's campaign. Judge Thomas Ludington of Michigan gave Bush $1,000, after being nominated in September 2002. Judge P. Kevin Castel of New York gave Bush $2,000 after Bush nominated him in March 2003. Judge Paul Crotty of New York gave $1,000 to Bush in June 2003, the same month he met with Bush officials about the judgeship. Judge Mark Filip of Illinois, who had volunteered as a Republican election monitor in Florida during the disputed 2000 election, gave the president $2,000 after Bush nominated him in April 2003. In a statement to Salon and CIR, White House spokesman Blair C. Jones said that "potential nominees" recommended to Bush are not based on "any consideration" of an individual's political contributions. He added, "We are not aware of any law or regulation that prohibits a federal judicial candidate or nominee from making political contributions." In Pennsylvania, Sen. Arlen Specter has recommended dozens of judicial candidates to the president during his career. As a longtime member of the Judiciary Committee, and its chairman since 2005, he has helped oversee Bush's hundreds of appointments. Speaking by phone last week, Specter said political contributions are "not a factor" in who gets recommended in his home state or elsewhere. Citing the thousands of contributors and tens of millions of dollars raised in his 2004 campaign, Specter said that "it's just not possible to know everybody" who gives money. However, in order to avoid any impression that the contributions carry influence, he said, "I think once an individual becomes a [judicial] prospect that that would be a cutoff point." In Pennsylvania, Specter said, that point would come when candidates apply for the job with a bipartisan selection committee set up by him and Rick Santorum, the state's other Republican senator. "I don't know of anybody who has made a contribution beyond that," Specter said. In fact, the investigation revealed at least three judges in Pennsylvania who gave money to Specter, Santorum or President Bush after they were formally under consideration for the jobs. The First Amendment protects the right of Americans to make political contributions. But there must be a balance, some ethics scholars and judges say, between that right and the responsibility of those seeking a judicial post to appear impartial. With the judiciary drawing increasing scrutiny and criticism in recent times, the American Bar Association is overhauling its judicial code of conduct to set new recommended ethical guidelines. The draft of the new code, to be voted on this February, would forbid political contributions by judicial candidates. Political patronage certainly didn't start with the Bush administration. (There is an adage in legal circles that a federal judge is "a lawyer who knows a senator.") The investigation of Bush-appointed judges also turned up a Clinton-appointed district judge in California, Dean D. Pregerson, who, like Judge Cook of Ohio, made a political contribution in apparent violation of the Code of Conduct for U.S. Judges. While serving on the bench in 2002, Pregerson gave $1,000 to Sen. Joe Biden of Delaware, according to federal records. (A spokesperson from Pregerson's chambers claimed that the contribution was made by his wife.) After being alerted to the forthcoming Salon/CIR story, the Committee for Justice, a conservative advocacy group in Washington with ties to Karl Rove and Santorum, looked into a sampling of President Clinton's judicial picks, according to Sean Rushton, the group's executive director. CFJ found 10 judges confirmed to the bench under Clinton who had given political contributions of some kind after they were nominated, according to information provided by Rushton. Indeed, money and personal connections have long played into the selection process in both parties, says political science professor Sheldon Goldman, author of "Picking Federal Judges." "Why pick someone who hasn't supported you over someone who has?" Goldman asks. "It's been tradition," he said. "You reward your friends." The status quo, however, is disturbing to some observers. Ethics concerns have been thrown into sharp relief in Washington, with a string of corruption scandals staining the Republican Party in particular. And the future shape of the nation's courts may hinge on the midterm elections, depending on which party controls Congress afterward. There are currently 49 vacancies on the federal bench -- and with a justice potentially retiring from the highest court, there is the possibility President Bush will nominate another Supreme Court Justice before leaving office. Campaign finance is an area of particular concern, says Jeffrey M. Shaman, a judicial ethics expert at DePaul University College of Law. "We just have so many problems with contributions to judicial campaigns, and so many problems with campaign contributions to members of the legislature," he said. "If someone wants to be a judge, then they should, in their sound discretion and wisdom, voluntarily decide not to make these contributions anymore." More than 50 Bush-appointed judges who made campaign contributions around the time of their nominations were contacted with written requests for comment, as were some other judges who gave money prior to their appointments. While many did not respond, some responded by phone or in written statements. Boyko, the Ohio district judge who gave money to Voinovich after Bush had nominated Boyko, said in a statement that he had given the money at a Republican fundraising event attended by Bush. "I have always expressed thanks for Senator Voinovich's trust in me and have always publicly supported him. If I could ethically donate today, I would. And, because of a long standing mutual respect with Senator Voinovich, I saw no ethical improprieties donating after the recommendation." Boyko added: "If you believe for a minute that $240, $2,000 or $25,000 'buys' a federal judgeship, as you clearly intimate ... your naivete astounds me. Any such insinuations are a blatant insult to both Senators, denigrating their integrity and character. No one 'buys' either Senator DeWine or Senator Voinovich -- period." Sen. Voinovich's press secretary, Garrette Silverman, said that participation in the political process is not a consideration. "To think that contributions would even enter the equation is absurd when we're taking about evaluating candidates for federal judgeships," she said. Judge Lavenski R. Smith -- who contributed money to Republican Sen. Tim Hutchinson of Arkansas after Hutchinson had recommended him to Bush for a judgeship, and after Smith had publicly acknowledged that he was undergoing an FBI background check for a potential nomination -- said in a written statement, "The proximity of the timing between my donations and my nomination was largely coincidental." The $1,000 donation to Hutchinson in 2001, apparently Smith's first federal contribution since at least 1990, came three weeks before Bush announced his nomination. Smith, who was confirmed to the 8th U.S. Circuit Court of Appeals in July 2002, also said, "Until nominated, potential nominees should retain their full first amendment rights to participate politically as ordinary citizens." A number of Bush-appointed judges from around the country, however, said they consider political contributions by judicial candidates to be inappropriate. "My thoughts are that it would probably be inappropriate for a lawyer who is a candidate for a federal judgeship to make a significant campaign contribution to a person having influence over the selection process, especially if the candidate had no prior history of making such contributions," wrote Judge Timothy C. Batten Sr., of Georgia, who was confirmed to the bench in March 2006. Even those who have a history of giving campaign money, Batten continued, "should realize that public disclosure of the contributions might ... raise unpleasant questions as to the purpose of the contributions." Judge Roger W. Titus of Maryland, confirmed in November 2003, wrote: "From a personal standpoint, I do not believe that political contributions should be made to an appointing authority while under active consideration." Judge Patrick J. Schiltz of Minnesota, confirmed in April 2006, wrote: "I knew that federal judges were forbidden from making political contributions, and I thought that, as someone recommended or nominated for a federal judgeship, I should follow the same practice." It's not always senators who make recommendations to the president for judgeships, and who receive political money that could look bad in the eyes of the public. In New York, because both senators are Democrats, Republican Gov. George Pataki has had an influential role under Bush in selecting nominees for the federal courts. Judge Richard J. Holwell, who was a law school classmate and former lawyer of Pataki's, met with the governor's judicial screening panel in March 2001 and was told he would be recommended for a judgeship. The next month, Holwell gave Pataki $10,000. In Pennsylvania, as in Ohio, there are numerous examples of Bush appointees giving money to influential politicians as they were headed for the bench. In March 2001, Judge Thomas M. Hardiman interviewed with a selection committee set up by Specter and Santorum for recommending judicial candidates to Bush. Between then and April 2003, when Bush nominated Hardiman for a district court seat, Hardiman contributed a total of $2,400 to Specter, $2,000 to Santorum and his political action committee, and gave thousands of dollars to other Republicans. Hardiman kept sending some of those donations even as he was interviewing with the White House, filling out forms for the Justice Department and undergoing his FBI background check. Hardiman was confirmed by the Senate in October 2003. This fall, he was nominated by Bush to be elevated to the 3rd U.S. Circuit Court of Appeals -- so he'll go before the Judiciary Committee, with Specter now in charge, again. Specter dismissed the importance of the money he received from Hardiman. "He was a protégé of Santorum, not mine," Specter said. He added that if he had known Hardiman was donating while under consideration for the judgeship, "I would have told him not to do it." As a Judiciary Committee member, Specter also helped oversee the confirmation of Judge Gene Pratter. Pratter gave Specter $1,500 between February and March 2003, and interviewed with the Pennsylvania selection committee in "spring" 2003, according to her Senate questionnaire. Pratter then interviewed with White House counsel Alberto Gonzalez in July and September 2003 -- and in September she contributed $2,000 to Bush. The records of other federal judges appointed by Bush in Pennsylvania reveal a similar pattern. Judge John E. Jones of Pennsylvania gave $1,000 to Santorum after he was recommended by the senators' committee. Judge Michael Baylson, nominated and confirmed in 2002 after serving for decades as legal counsel and then treasurer for Specter's campaigns and committees, gave $2,000 to Specter after it was reported in the press that Baylson was a likely candidate for the judgeship. "If I had known about it," said Specter, "I would have returned their contributions. I don't want anybody to think that it's relevant." He added, "You ought to look at all the others who were nominees who didn't make contributions. I don't think anybody would believe that those contributions would influence a decision on making anyone a judge." But ensuring that the public won't see the money as tainting the selection of judges may not be so simple. "All campaign contributions are in some sense to buy influence," said William Hodes, a professor emeritus of law at Indiana University who helped draft the proposed ABA code. "Once you cross into the world of judging or being a candidate for judge you take on a new responsibility to begin living by the rules of your new job," said Hodes, who runs a legal ethics consulting practice. "Since sitting federal judges can't donate even a dime anyway, my guess is that it would be very comfortable for the federal system to say once you have had direct talks with the senator with an eye toward [a judgeship], or if the White House has contacted you, then you're a candidate and you have to back off." Even some Bush judges who gave money as they were bound for the bench acknowledge the ethical concerns that it can raise. "I was recommended [to the president] around August 2001," said Judge Jones of Pennsylvania. "Is that the point that I should have stopped making contributions? Maybe I should have." He added, "If you know you're being recommended by the screening panel, probably in retrospect it's better to say, 'That's it,' and not make any contributions after that. But that's the benefit of hindsight." Read this story on Salon.com.

Miers to testify?

James Sandler — Wed, 13 Jun 2007 00:00:00 -0700

The congressional caucus gunning for AG Alberto Gonzalez and, perhaps, seeking a thorough investigation, seems undeterred by last week’s failure to pass a vote of no confidence against the nation’s lead law enforcer. Subpoenas are now in the works for two White House insiders as Democrats in Congress press ahead with their investigation into the firing of eight federal prosecutors. Former White House counsel and one-time Supreme Court nominee Harriet Miers will soon be called to testify. She’ll be joined by former White House political director Sara Taylor. It’s a direct volley into the West Wing as the Bush Administration has thus far refused to allow sworn testimony from senior White House officials. If Big Al’s testimony was any indication, however, this volley will be nothing but duds.

Bush Judge Under Ethics Cloud

Fri, 02 Mar 2007 12:37:49 -0800

A federal judge nominated by President Bush to one of the nation's highest courts disqualified himself from two cases against a corporation in which he has held personal investments, after a report revealed that his career on the bench has been riddled with conflicts of interest. On Jan. 23, following the Salon story "Bush Nominee Broke Law," Judge James H. Payne recused himself from two product-liability suits against drug titan Pfizer, which had been assigned to him since November, according to court documents. Payne has reported stock holdings of up to $15,000 in Pfizer since 1999. Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on cases involving companies in which they or members of their immediate family own stock. Payne was nominated by Bush last fall to the 10th U.S. Circuit Court of Appeals, based in Denver, and is awaiting a confirmation hearing. The chief judge of the 10th Circuit Court and a member of the Senate Judiciary Committee staff told Salon they plan to look further into Payne's reported violations of federal law, while senators from the judge's home state have reaffirmed their support of the nominee. Payne, who is currently chief judge of the federal district court in Muskogee, Okla. (he was elevated by Bush from magistrate judge in 2001), recused himself without the prompting of lawyers, according to lawyer Laurie Koller, who helped bring the cases against Pfizer. Payne declined to comment on either the initial Salon story or his subsequent recusals. The judge decided that "out of respect for the Senate confirmation process it's not appropriate for him to make any comments," said his secretary Linda Ambrose, who referred questions to the White House and Department of Justice. Bush administration officials did not return repeated calls for comment on the Salon story, which revealed that since 1999 Payne has issued more than 100 orders in at least 18 cases that involved corporations in which he reported stock holdings. "I, of course, would first want to talk to Judge Payne and I haven't been able to do that yet," Chief Judge Deanell Reece Tacha, the Reagan-appointed judge who heads the 10th Circuit Court, told Salon. "I want to get the facts first." The chief judge of any circuit court can call a special committee of judges to investigate misconduct and potentially censure a judge. Lawmakers may raise the conflict-of-interest problem at Payne's confirmation hearing before the Senate Judiciary Committee, which has not yet been scheduled. "It's too soon to make any determination on the nomination," said Tracy Schmaler, a spokesperson for Sen. Patrick Leahy, the ranking committee Democrat. "Staff is looking into it, and it will likely come up at the hearing." The office of Republican Sen. James Inhofe of Oklahoma provided this statement: "Senator Inhofe continues to strongly support Judge Payne's nomination and knows of no instances where Judge Payne has been involved in any conflict of interest. The Senator has full faith in the exhaustive background checks performed on these nominees and will comment further when the facts surrounding this internet story are known." Oklahoma's other senator, Republican Tom Coburn, who sits on the Judiciary Committee, did not return Salon's calls. However, a story in the Oklahoman newspaper last week reported that "spokesman John Hart said Coburn is not inclined to consider the Salon.com report credible." To date, no one has disputed any details of the Salon report. Professor Monroe Freedman, an expert on ethics at the Hofstra University School of Law, said controversy over conflicts of interest could very well torpedo a nomination like Payne's. He pointed to the case of Judge Clement Haynsworth, a Nixon nominee to the Supreme Court who was rejected by the Senate largely because of his financial conflicts. "If you've got a case of multiple offenses, or one or more blatant ones, I would hope that [the Judiciary Committee] would pay attention to it and I think they probably will," he said. Based on Payne's record, "a fair prediction can be made that this is a judge who cannot be counted on to abide by his ethical obligations." "We're not only talking about public servants -- we're talking about members of the judiciary," Freedman added. "I'm no less concerned about the message it sends to other judges." Meanwhile, in Tulsa, one of the cities where Payne presides, some lawyers said their trust in Payne's integrity has not been shaken. "Nobody in the legal community in Tulsa or Northern Oklahoma is probably going to care," said lawyer David Blades. "Tulsa's a small town, by national standards. We all know each other, we all know the judges and go to the same bar meetings, and it's just not going to make a difference." Blades added, "He may have made some administrative error ... but I haven't ever seen it affect his job." Tulsa lawyer Tracy Cinocca said she would be surprised if Payne hadn't considered his recusal decisions carefully. "I think that a lot of the legal community would be supportive of Judge Payne, but at the same time I think the article is one that brings questions to light that would be of concern to the public," she said. "Because everybody wants to make sure that access to the courts is safeguarded. They want to make sure that the judges there are beyond any appearance of impropriety." Safeguarding that public confidence in the system could be much more difficult once a judge with a tarnished track record has secured a position on the federal bench -- or in Payne's case, is elevated to a higher one -- according to Hofstra University's Freedman. He notes that impeachment, a rarity, is the only way for Congress to discipline a federal judge, making it all the more important in a case like Payne's to consider the issue when deciding whether to confirm him. "It would be a disgrace if it does not preclude his confirmation," said Freedman. "He should not be confirmed." ***** Click here for the original story, along with documents used in this investigation and tips for how to check on judicial conflicts of interest.

Bush Withdraws Nominee

Fri, 02 Mar 2007 12:37:49 -0800

President Bush's nomination of Judge James H. Payne to one of the highest courts in the nation has been withdrawn, following questions raised in late January about Payne's ethics. Currently chief judge of the U.S. District Court in Muskogee, Okla., Payne was nominated by Bush to the Denver-based 10th U.S. Circuit Court of Appeals last September. At the time, his nomination appeared to have no roadblocks: His 2001 nomination by Bush to become a district judge in Oklahoma had been confirmed unanimously by the Senate, and as it had in 2001, the American Bar Association gave Payne its top approval rating in December as he headed toward the 10th Circuit. But Payne's qualifications drew scrutiny after Salon reported on Jan. 23 that Payne's career on the federal bench was riddled with conflicts of interest: Court and financial records show that he issued more than 100 orders in at least 18 cases involving corporations in which he had reported stock holdings. Both federal law and the Code of Conduct for U.S. judges prohibit judges from sitting on such cases. In response to that initial report, Senate Judiciary Committee staff, as well as the chief judge of the 10th Circuit Court, said they planned to look further into Payne's record. Meanwhile, also on the heels of the report, Payne abruptly disqualified himself from two product-liability suits against drug titan Pfizer -- a company in which Payne has reported stock holdings of up to $15,000 since 1999. After learning about the conflicts of interest, the American Bar Association reevaluated Payne, and lowered his rating Feb. 21. The White House announced the withdrawal at 8 p.m. EST Tuesday. Apparently the decision to stop his career short of the nation's second-highest bench came at Payne's own prompting. "He asked to have his name withdrawn, and we've honored that request," said White House spokesman David Almacy. Payne, who has never commented on or disputed the findings in the Salon reports, did not return a phone call to his office late Tuesday. Professor Stephen Gillers, a legal ethics expert at the New York University School of Law, said a pattern of conflicts like Payne's "really speaks ill about a judge's awareness of his responsibilities" and can "easily explain" the decision to withdraw. A Senate confirmation hearing for Payne that would have been likely to highlight the ethical problems, Gillers said, could have proved embarrassing to the Bush administration, Oklahoma's two Republican senators, James Inhofe and Tom Coburn -- who have backed Payne so far -- and the judge himself. "This is going to have a ripple effect on district judges who aspire to the circuit to pay more attention to the recusal rules," Gillers added. "This is a bold announcement to the federal trial bench that the recusal rules do matter and that ignoring them can kill your aspirations to promotion." While the White House said it was Payne's decision, Gillers noted, "If the White House and the senators said, 'We're with you, we'll stand by you, we can beat this,' I don't think we'd be in this situation." Republican and Democratic staff of the Senate Judiciary Committee, which had not yet scheduled Payne's hearing, declined to comment. Inhofe and Coburn did not return Salon's phone calls. Professor Steven Lubet, an ethics scholar at the Northwestern University School of Law, suggested there might be other reasons for the Payne withdrawal aside from the conflict-of-interest issue. "Given the judges that the White House has backed to the hilt, I would speculate that there's something here that has caused them pause, and I would just have to guess that it's not something that we're aware of," Lubet said. The ethics problem, however, may well be enough to sink a nomination in this political climate, said Professor Monroe Freedman, of the Hofstra University School of Law. "Possibly, Republican senators are getting a little bit anxious about any more tarring, and the situation with this guy is not one that's readily defensible," he said. "It's possible that they just don't want to be in the situation of defending conflicts of interest. There has been enough embarrassment on the Republican side with this kind of problem." And it wasn't just one mistake by Payne. It was the "pervasiveness" of his failures to recuse himself from multiple cases, involving multiple stock holdings, that most concerned Professor Leslie W. Abramson, of the University of Louisville's law school, who reviewed Payne's cases. Payne even recused himself properly sometimes, Abramson noted -- showing that he knew the rules, or at the very least a clerk working for him did. In any case, said NYU's Gillers, "it certainly means that someone anticipated a difficult confirmation hearing that might ultimately have been unsuccessful." ***** Bush Nominee Appears to Violate Conflict of Interest Rules / January 23, 2006 Click here for CIR’s original story documenting Judge Payne’s conflicts of interest. You can also view documents used in this investigation, including details on how Judge Payne apparently made a political contribution to a Republican candidate for governor despite ethics rules against such activity. Also find tips for how to check on judicial conflicts of interest. Bush Judge Under Ethics Cloud / January 31, 2006 Click here to learn how, following CIR’s investigation, Judge Payne abruptly recused himself from two lawsuits against drug titan Pfizer, which he had invested in since 1999. The chief judge of the 10th Circuit Court and Senate judiciary committee staff told CIR they plan to look further into Payne's reported violations of federal law, while senators from the judge's home state reaffirmed their support of the nominee. Bush Judge's Rating Lowered / March 2, 2006 Click here to see that, in an unusual move, the American Bar Association lowered its rating of Judge Payne. The ABA decided to reevaluate the judge after hearing of his conflicts of interest. Bush Withdraws Nominee / March 8, 2006 Click here to view this story on Salon.com.

Key Bush Judge Under Ethics Cloud

Fri, 02 Mar 2007 12:37:49 -0800

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.

Documents Show Controversial Bush Judge Broke Ethics Law

Fri, 02 Mar 2007 12:37:49 -0800

Starting in 2002, Terrence W. Boyle, a longtime federal district court judge in North Carolina, presided over a lawsuit against General Electric, in which the corporation stood accused of illegally denying disability benefits to a long-standing employee. Deep into the case, on Jan. 15, 2004, Judge Boyle bought stock in General Electric, according to a review of his financial filings. Two months later, he made his ruling: Boyle shot down the plaintiff's claims to long-term and pension disability benefits, granting him only a fraction of the money in short-term compensation for a debilitating mental condition. Boyle, 60, a controversial Bush nominee strongly opposed by Democrats and liberals as a staunch foe of civil rights, is on the verge of joining one of the country's highest courts. An investigation by Salon and the Center for Investigative Reporting has revealed that Boyle apparently violated federal law prohibiting judicial conflicts of interest -- not only in the G.E. case, but in many instances since his nomination by President Bush five years ago. Bush nominated Boyle in 2001 to the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. Senate Democrats have blocked confirmation of the one-time Jesse Helms staffer, though his conflicts of interest on the bench have not come to light until now. Senate Republicans pushed Boyle through the Judiciary Committee last summer. Now, with the full-throated backing of Senate Majority Leader Bill Frist and the White House, Boyle appears to be headed for the final stage of the process -- a full Senate vote that could come soon and may reignite partisan warfare that in 2005 led to threats of a "nuclear option" to wipe out filibustering of judicial nominees. Frist reportedly aims to use a fight over Boyle and other controversial nominees to fire up conservative voters and help fill campaign coffers heading into congressional elections this November. Early in his nomination process in 2001, Boyle wrote to the Senate Judiciary Committee in response to its routine questionnaire: "I will avoid any conflict of interest, potential conflict of interest, or appearance of conflict of interest. I am disqualified from presiding over, or being involved with, any litigation involving any party with whom I might have any financial interest." At the very time Boyle typed up that pledge of integrity, however, he was in the middle of a case involving Quintiles Transnational, a pharmaceutical services company in which he reported stock holdings, and on whose behalf he had been issuing favorable rulings. In fact, since his May 2001 nomination, Boyle has issued orders in at least nine cases that involved five different corporations in which he reported stock holdings, according to financial and court documents. In most of the cases, Boyle ruled in favor of the companies in which he had financial interests -- though his participation was a violation of the law regardless of how he ruled. Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on such cases -- no matter how small their stock holdings -- in order to ensure public trust in the judicial system. From 1999 to 2004 (the years that Boyle's financial disclosure forms are currently available), he broke the rules in at least one case per year. Boyle presided as chief judge of the U.S. District Court of the Eastern District of North Carolina during those years. "It's a pretty egregious example of a judge disregarding the brightest-line rule of judicial ethics," said Doug Kendall, executive director of Community Rights Counsel, a nonprofit public-interest law firm in Washington that works to expose ethical conflicts of judges. Professor Leslie W. Abramson, a judicial ethics expert at the University of Louisville's law school who reviewed Boyle's record, said it shows at least a pattern of negligence, if not one "heading toward intentional disregard" of federal law. "Judge Boyle's conduct," Abramson said, "places his own and the judiciary's integrity and reputation at risk." Boyle did not return repeated phone calls to his office requesting comment. He also did not respond to a letter, delivered April 19, detailing the cases at issue and asking for specific explanation. None of the lawyers and plaintiffs interviewed by Salon had any idea about Boyle's conflicts in their cases. Martha Bursell, the widow of the General Electric employee, Ken Bursell, who ended up in Boyle's court, was surprised and outraged to learn the judge had purchased G.E. stock. "Why could he get away with doing it?" she asked in a phone interview from her home in Indian Trail, N.C. In March 2004, the same month Boyle ruled in the G.E. case, he also ruled in favor of Midway Airlines in a bankruptcy case. At that time, Boyle owned stock in Midway in a trust account. (The stock was basically worthless because of the bankruptcy, though he still listed it as a financial investment.) Boyle's ruling was later partially reversed on appeal by the 4th Circuit Court. One of the Democrats' common criticisms of Boyle is that he has been reversed on appeal at an unusually high rate, though his supporters dispute that. Kendall, who also reviewed Boyle's records, said there's not enough money involved to conclude that Boyle made any rulings for personal financial gain. All of the stock holdings at issue were valued below the $15,000 mark according to his financial disclosure forms, and many were worth substantially less. But, Kendall said, the violations are especially glaring because he committed them as a circuit court nominee. "You would think he would be particularly careful at that point," Kendall said, "and apparently he has not been." Professor Monroe Freedman, an ethics expert at the Hofstra University School of Law, said Boyle's conflicts of interest alone should prevent his confirmation to the nation's second highest bench. "If they're going to let people get by and confirm people who have this kind of background, why should anybody then be surprised when we have a federal bench with judges on it that engage in unethical conduct?" Freedman asked. "He is disregarding the law. I'm appalled that he got past the Judiciary Committee." Freedman added that given Boyle's record, if the Senate votes to confirm him, "they communicate the message that the disqualification statute doesn't matter." President Ronald Reagan appointed Boyle to be a federal district judge in 1984, with a push from former Sen. Jesse Helms, who once employed him briefly. President George H.W. Bush nominated Boyle to the appellate bench in 1991, but Boyle never made it to a Senate vote. He remains a favorite of conservatives, and currently holds a unanimous well-qualified rating from the American Bar Association. But Democrats and liberal advocacy groups have vigorously criticized him for his numerous rulings on disability, gender and racial discrimination cases. Bush renominated Boyle in 2003 -- when then-North Carolina Sen. John Edwards was key in blocking his confirmation -- and again in 2005. With Edwards gone from the Senate, Boyle got past the Judiciary Committee last summer on a party-line vote. Frist has made it clear he'll push for a full Senate vote for Boyle and other controversial nominees soon. "In the coming weeks, we need to ... confirm new nominees to fill vacancies on the federal bench," Frist said in an April 27 speech touting Brett Kavanaugh, another controversial circuit-court nominee Frist is currently pushing along with Boyle. Frist emphasized, "We need judges on our courts who are qualified, who demonstrate the highest integrity ... and will respect the rule of law and the Constitution." "Frist's successful fight on circuit judges last year energized the base and contributed to small donor giving for Senate Republicans," a GOP leadership aide said on April 20, according to the National Journal publication CongressDaily. "Future fights on pending circuit court nominees over the next few months will show voters the difference between Senate Republicans and the obstructionist Senate Democrats." In the same report, a spokesman for Minority Leader Harry Reid said Frist's efforts were directed toward 2008 as well, labeling them "part of the Bill Frist presidential campaign of throwing a little red meat to the base." Meanwhile, White House spokeswoman Jeanie Mamo said in an April 24 article in the Raleigh News & Observer that "Judge Boyle has a distinguished record of judicial service and should be confirmed immediately." Neither the White House nor Sen. Frist's office responded to calls seeking comment on the conflicts of interest riddling Boyle's record. In an e-mail, a Department of Justice spokesman wrote, "as a matter of practice the Department of Justice does not comment on pending nominations." Boyle is not the only Bush circuit-court nominee found to have repeatedly violated conflict of interest law. Salon reported in January that Judge James H. Payne of Oklahoma had issued more than 100 orders in cases involving companies in which he had financial interests. In reaction to the report, the American Bar Association lowered its rating of Payne, whom Bush had nominated to the 10th U.S. Circuit Court of Appeals. At the time, Senate Judiciary staff and the chief judge of the 10th Circuit also said they would investigate Payne's record further. By March, Payne withdrew from the nomination, while declaring "the allegations were without merit," though he offered no further explanation of his record. In a letter to President Bush, later published in Payne's hometown paper, he explained that he was obligated to turn down the appointment to the higher court so that he could finish overseeing the renovation of information technology systems at his current courthouse in Muskogee. Like nearly all federal courts nationwide, the North Carolina court where Boyle serves is equipped with a computer system designed to avert conflicts of interest. Judges can plug in a list of their financial interests, and have the computer screen the cases. University of Louisville's Abramson advocates that court clerks run the program and reassign problem cases before they ever reach the judge's chambers. Boyle's court, however, doesn't use the system. Instead, judges themselves are responsible for looking over the cases assigned to them and determining if they have any conflicts of interest. "We've been successful with the current situation," said Michael Brooks, acting clerk of Boyle's court. Regardless of what system a judge chooses to use, federal law says a judge is responsible to "inform himself about his personal and fiduciary financial interests" in order to avoid conflicts. Several lawyers litigating against the companies in which Boyle had financial interests said they trusted Boyle and were not bothered by his participation in the cases, even when he had ruled against them. Jerry Leonard, for example, is a Raleigh lawyer who brought a case against AT&T, in which Boyle made only one routine, administrative order. A former judge and self-described "wide-eyed liberal," Leonard said he shares the view of many local lawyers that Boyle is fair-minded, and "probably the best judge we have around here." He added: "That's not saying a lot at all." In a case in 2002 against America Online and other companies, one plaintiff did request that Judge Boyle recuse himself, but Boyle refused. The plaintiff alleged he was biased against her -- though, ironically, she did not know at the time of Boyle's reported stock holdings in AOL Time Warner, the parent company of America Online. Refuting her, Boyle wrote, "In this case, Plaintiff has presented no evidence of bias whatsoever ... The Court can only guess that Plaintiff's motion is based on the fact that this Court has previously dismissed some of the cases filed by Plaintiff." Also in 2002, Boyle ruled in favor of Midway Airlines when the company was in Chapter 11 bankruptcy and hoping to bounce back. Theoretically, if the airline survived, Boyle's investment in the company had a chance of being worth something again. North Carolina's labor department had investigated Midway and found it owed $2.1 million in vacation pay to more than 1,000 workers. Midway disagreed. Boyle ruled that the labor department couldn't sue Midway in state court to get the money; it could only seek the vacation pay through bankruptcy proceedings. "It limited the state's ability to pursue this particular kind of claim, at least in this (judicial) district," Daniel Addison, a special deputy attorney general who worked on the case, told Salon. Addison said he didn't know Boyle owned stock in Midway at the time, and declined to comment specifically on that. By the time Boyle made that ruling in the Midway case, he had begun presiding over Ken Bursell's case against General Electric. After 20 years at the company, Mr. Bursell was accused one day in 1999 of stealing two laptop computers, according to his lawsuit. He was immediately suspended from work and escorted by security to his truck. He was later reinstated, but never recovered emotionally. He developed major depression, panic and obsessions from the incident, according to his psychiatrist. He felt violent rage at work, and decided he couldn't stay there. He couldn't hold down another job, or even go to the store alone. He was diagnosed as totally disabled. "It broke his spirit, he was never the same," said his widow. "He just went into complete breakdown." Mrs. Bursell, 61, said her husband's downward spiral helped lead to his death from cancer last year. G.E. repeatedly refused Bursell disability benefits. Other doctors, whom the company had review his medical condition, found him capable of working. Boyle's ruling in the case, handed down two months after the judge invested in General Electric stock, was disappointing to the Bursells. "It was not much money," said Mrs. Bursell. She now believes her husband couldn't have received a fair hearing in front of a judge with financial interests in G.E. -- but how were they supposed to know? "I would have loved to have known what was going on, because I'm a fighter," she said, after learning of Boyle's financial records. "To me, he shouldn't do it." John Doyle, a lawyer for General Electric in the case, said he wasn't aware of any stock conflict at the time of the case. Six months after his judgment in the G.E. case, Boyle ruled in another emotionally charged case. And he committed another apparent violation of ethics law. On Sept. 17, 2004, he ruled against Deborah Virgil, whose 11-year-old son, Craig, had been hit and killed by an Amtrak train in Elm City, N.C., in March 2003. With the crew failing to notice, the train hadn't stopped after striking the boy until it had passed the next station. Virgil sued the conductor, Amtrak and CSX Transportation, the company that owned and operated the tracks. Boyle reported stock holdings in parent company CSX Corp. while he presided over the case. Virgil's attorney filed motions that would have sent the case to a county court instead. But accusing Virgil of shopping for a friendlier court, Boyle rejected those motions, taking the ethical high ground. "Fairness to all in the litigation process warrants the suppression of undisciplined forum shopping," Boyle wrote. The parties settled shortly afterward.

Bench Warfare

Fri, 02 Mar 2007 12:37:49 -0800

With an eye on congressional elections this November, Senate Majority Leader Bill Frist signaled last month that he was itching for a fight, pledging floor votes in the Senate for some of President Bush's most controversial judicial nominees. Republicans would strategically welcome renewed partisan warfare over judges, it appeared, because it could help rally right-wing voters to the polls in November. Longtime federal district Judge Terrence W. Boyle of North Carolina, for years opposed by Democrats as an enemy of civil rights, was one of Frist's top two picks to get the showdown started this month. But new revelations of ethics violations committed by Boyle have left his nomination to one of the nation's most powerful courts hanging in doubt, and Senate Republicans backpedaling. Frist has yet to schedule Boyle for a vote, but the right-wing base is already demanding action. For the first time in Boyle's long, contentious nomination process, a group of 14 former law clerks to the judge have launched an ambitious campaign supporting him. At its center is their defense of Boyle against the ethics allegations. On May 1, an investigation by Salon and the Center for Investigative Reporting revealed that since his nomination by Bush in 2001 to the 4th U.S. Circuit Court of Appeals, Boyle has issued orders in at least nine cases involving corporations in which he reported stock holdings -- a violation of federal law. The former clerks have been sending impassioned letters to senators, urging them to dismiss the ethics issue and stand firmly behind Boyle. To bolster their case, they circulated a two-page memo aiming to refute, point-by-point, the Salon report showing Boyle's career on the bench to be riddled with conflicts of interest. Boyle has not responded to repeated inquiries from Salon requesting clarifications about his record. Although he has reportedly issued his own explanation of the ethics conflicts to the Department of Justice, for now the two-page memo has become Boyle's proxy defense in the public debate. The memo -- circulated by the former clerks though signed by no one -- fails to disprove any aspect of the Salon report. In fact, it contains numerous distortions and factual errors, and ignores the letter of federal ethics law. Nevertheless, right-wing activists quickly mobilized around the former clerks' assertions. "Senate Republicans stand mute in the face of lies by the left about Judge Boyle, making it necessary for several of his former clerks to write to the Senate Majority Leader Bill Frist (R-Tennessee) in his defense," said Jan LaRue, chief counsel of Concerned Women for America, in one of several press releases last week designed to pressure the Republican leadership. Calling the ethical conflicts exposed by Salon "shamefully personal attacks," five of the former clerks themselves wrote to Sen. Lindsey Graham last week, asking to meet with him and beseeching him to reaffirm his support of Boyle. "If someone from the Senate does not stand up and defend Judge Boyle this week, the nomination may be lost," they said. "We implore you to afford no credence to these charges." The memo's inaccuracies -- as well as the ethics violations by Boyle first raised by Salon -- can all be verified by reviewing publicly available court records and financial disclosures. The documents debunking the memo are posted on the Center for Investigative Reporting's Web site, [below]. The following is a specific explanation of the memo's inaccuracies: • Regarding a lawsuit against General Electric over which Boyle presided from 2002 to 2004 -- and during which Boyle purchased G.E. stock -- the memo points out that Boyle granted the plaintiff part of his claim against G.E., claiming that "Boyle ruled in favor of the plaintiff." It fails to mention that the judge did not grant the plaintiff the majority of his claim against G.E. Moreover, the point is moot: Boyle's ruling in the case was a violation of the law no matter how he ruled, because he owned stock in the company while ruling in the case. The memo also says that Boyle had indicated how he would rule at the trial, before he bought the stock. Yet the case was still underway after the trial, with G.E. trying to introduce new evidence -- and Boyle didn't issue his formal ruling until after he bought the stock. • In the lawsuit Jackson v. Time Warner Cable, Inc., Boyle presided from 2001 to 2003. The justification in the memo for Boyle's missing the conflict of interest: "It appears that no corporate disclosure statement indicating that AOL was a party ever was filed. Consequently, the screening process could not identify a conflict." Apparently Boyle's system could not detect that Time Warner Cable Inc. had any connection with AOL Time Warner. In fact, Boyle reported stock in "AOL Time Warner" in his 2001 and 2002 financial disclosures, and in "Time Warner, Inc." on his 2003 financial disclosure. And the original lawsuit described the defendant as "presently doing business as America on Line, Time Warner Cable." The memo also contends that the dismissal of the case -- which Boyle signed -- came four months after Boyle sold his stock. But Boyle only sold a portion of his stock -- he still had stock in the company in his IRA account when he made that order. • In a case involving the company Quintiles, the memo points out that Boyle sold Quintiles stock in 2000, before the case began. It fails to mention that Boyle reported owning Quintiles stock in 2001, while he made rulings favorable to Quintiles. Boyle's financial disclosure forms show that he sold that Quintiles stock in 2002, after the case was over. • The memo dismisses another case involving America Online as a defendant, during which Boyle owned AOL Time Warner stock. It suggests that AOL's involvement in the case was unclear. Court documents, however, show that America Online was listed prominently as a party in the case, on several court filings, before Boyle issued a ruling. • In cases involving Midway Airlines in which Boyle ruled, the memo claims that "he had no financial interest" as a trustee of "a child's trust" that held Midway stock. The law, however, says that a judge who is a trustee does have a financial interest in the trust. The memo also says, "Judge Boyle was unaware that the Midway stock was listed in the trust at the time he was assigned to any Midway case." But Boyle filed signed financial disclosure statements listing Midway stock every year, from 1999 to 2004. The main thrust of the memo circulated by the former clerks is that "Boyle never has received or kept a case assignment knowing he had a conflict, or the appearance of a conflict," and that regardless, the amount of stock he owned was too insignificant to matter. Their reasoning is fundamentally misguided, says Leslie W. Abramson, a judicial ethics expert at the University of Louisville's law school. That the statute forbids participating in cases while owning stock is "all that matters," said Abramson, who reviewed Boyle's cases and financial filings. "Each time he sits in a case when he owns stock in a party, he's violating it." Professor Monroe Freedman of Hofstra University School of Law said the defense in the memo "demonstrates an ignorance of the fact that the statute requires him to know what his own financial interests are," Freedman said, "and that the statute makes the policy decision that a financial interest, however small, is a disqualifying factor." While former clerks often come forward to back a judge's elevation to a higher court, such an "aggressive" strategy from so many former clerks is unusual, said Norm Ornstein, resident scholar at the American Enterprise Institute. "But it's an aggressive strategy that comes in an unusual situation," Ornstein said. "In the end, his success probably rises or falls based on how these allegations hold up." Salon called several of the former clerks to discuss the basis of the memo and their letters to senators. One of them, Lars Liebeler, now an attorney in Washington, replied in an e-mail: "I would be happy to talk to you by phone after you print an immediate retraction and correction," in reference to Salon's reporting on Boyle. Liebeler added in the e-mail, "Several of the nine cases that you refer to in your May 1 article were cases that were never assigned to Judge Boyle." To that end, Liebeler seemed to suggest that some case numbers were not designated with a "BO" for Boyle, but rather letters indicating other judges, such as "BR" or "H." As publicly available court filings plainly show, however, Boyle was indeed assigned all nine cases when he issued orders in violation of ethics rules, with the case numbers at the time including the designation "BO." (Only when cases are later reassigned do the letters change to indicate a new judge.) Republicans have clammed up about Boyle's future since the ethics violations came to light. Judiciary Committee chairman Arlen Specter has said for more than two weeks that he is closely studying the ethical conflicts in question. On May 10, the Washington Post reported that Specter said the conflicts would be "disqualifying" unless Boyle could otherwise explain them. Liebeler did not respond to a follow-up e-mail asking if Judge Boyle himself provided information that the former clerks used to defend him. Senate Republicans, including Specter, Frist and Graham, did not respond to repeated requests by Salon for comment. According to the Washington publication CongressDaily on May 11, Republican Sen. Susan Collins of Maine said, "I have serious concerns about the conflict-of-interest charges," adding that she had requested more information from the White House. A spokesman for Collins said that as of last Friday, Collins had not received any further information. Democratic leaders have called for Boyle's nomination to be withdrawn by the president or filibustered, citing the conflicts of interest -- Minority Leader Harry Reid called them "the clincher" in the case against Boyle. Democratic senators in the bipartisan coalition known as the Gang of 14, which averted a showdown over judical nominees last year, urged another hearing for Boyle in light of the "new information." But Specter said on May 11 that he will not hold a new hearing. Certainly much has changed since April, when Frist indicated he would push for a floor vote on Boyle -- the only remaining hurdle between Boyle and the 4th Circuit Court -- in May. "Terry Boyle is one example of a nominee who deserves our consideration," Frist said on the Senate floor April 25. "We need to keep up the momentum and keep driving forward so that each and every nominee gets a fair up-or-down vote on the floor of the Senate." Frist has not defended Boyle or set a floor vote since the conflicts of interest came to light. The White House has acknowledged that Boyle had "a handful of cases over the years where it appears that recusal was warranted." "These are mistakes that happened to many judges," Bush spokeswoman Jeanie Mamo told Salon on May 2. Not so, said Jeffrey M. Shaman, a judicial ethics scholar at DePaul University College of Law. "I don't think many judges do this at all -- it's a long-standing, express rule in the judicial code of conduct," he said. "If he didn't know he had stock in these companies then that was gross negligence." Shaman said that if it were only one case with a small amount of stock, he would be more sympathetic to an argument downplaying the mistake. In Boyle's situation, however, "To have done it in so many cases shows an utter disregard of a judge's obligation," he said. "This is not a minor thing." Mamo did not respond to a request for further comment about Boyle's cases in which the White House acknowledged recusal was warranted. According to AEI's Ornstein, in addition to rallying the base, the White House and Republican leaders have been spoiling for a fight on judicial nominees to "change the subject" from Iraq and gas prices -- as well as from ethics scandals dogging the party. Boyle was part of that plan, but because of the ethics problems, Frist may no longer have even enough Republican votes to confirm Boyle with a simple majority vote, Ornstein said. Even if Frist scrounged up a majority, Democrats are likely to filibuster, he said. "At some point they've got to realize that this guy is damaged goods," Ornstein said. But he's not necessarily convinced Boyle's nomination will be dropped by Republican leaders. "It wouldn't surprise me to find the administration continues to push this nomination despite the lapses that have appeared in his record," Ornstein said. "They realize they have to do something to get their base juiced up." Playing "footsie with the ideologues," however, also carries its risks. "You are playing with fire," Ornstein explained. "You run the risk of alienating the larger part of the electorate ... and whatever you do is not enough." In the end, Ornstein said, Republicans must face the following question: With so many good candidates for appellate court judgeships, why push for Boyle? "For them to put this guy on the appeals court certainly seems to be at best highly questionable. It's a test," he said -- not only for the Gang of 14, but for "honest Republicans."

Timeline of Uncertainty for Bush Judicial Nominee

Fri, 02 Mar 2007 12:37:49 -0800

The likelihood of a Senate vote on the nomination of Judge Terrence W. Boyle to the 4th U.S. Circuit Court of Appeals has generated considerable speculation since the Center for Investigative Reporting first revealed Boyle’s conflicts of interest in a Salon.com story May 1st. Majority Leader Bill Frist had indicated in April that he would push for a vote on Boyle in May. After the CIR/Salon report, top Democrats called for Boyle’s nomination to be withdrawn, and Minority Leader Harry Reid - calling the report “the clincher" in Democrats' opposition to Boyle - threatened to filibuster the nomination. Judiciary Committee Chairman Arlen Specter launched an investigation of the conflicts and held an unusual series of briefings for Senate staffers. As Frist seemed to step back from supporting Boyle, conservative advocacy groups turned up the heat on the Majority Leader, demanding a vote on the nomination, which is the only hurdle left between Boyle and one of the highest courts in the nation. Here are some of the highlights concerning the Boyle nomination since CIR's series of stories in Salon: Jan. 10, 2007: -Judge Boyle tells the Raleigh, N.C. News & Observer why he didn't ask for his nomination to be withdrawn: "In terms of me throwing in the towel or quitting, that's not what I'm going to do. I'm not going to let them beat me down." Jan. 9, 2007: -The Associated Press reports: "In a concession to the Senate's new Democratic majority, President Bush won't rename four controversial federal appeals court nominees whose confirmations were blocked last year, Republican officials said Tuesday. William Haynes, William G. Myers III and Michael Wallace all asked to have their appointments withdrawn, these officials said. Judge Terrence Boyle was informed of the White House's decision, according to an ally." The Richmond Times-Dispatch cites Boyle's conflicts. -Bloomberg reports: "Boyle declined an invitation last month by Attorney General Alberto Gonzales to withdraw his nomination, said Lars H. Liebeler, a Washington lawyer and former Boyle law clerk who spoke on behalf of the judge. 'The attorney general called Judge Boyle and told him that Haynes, Myers and Wallace had submitted letters saying their nominations should be withdrawn and asked Judge Boyle what he wanted to do,' said Liebeler, who has been championing Boyle's nomination. 'Judge Boyle said, if the president didn't want to renominate him, he would understand that decision but he was not going to quit.' On Jan. 5, Gonzales telephoned Boyle to say that Bush's advisers had concluded that the judge couldn't win Senate confirmation and recommended Bush not resubmit his name to the Senate, Liebeler said. He said Boyle told Gonzales that he understood the political reality." Dec. 9: -The Senate adjourns, leaving Boyle's nomination hanging. To pursue Boyle's elevation to the 4th Circuit, President Bush would have to renominate him in 2007. Nov. 15: -President Bush renominates Judge Terrence Boyle and other controversial judicial picks, "triggering the first real battle with ascendant Democrats since the midterm elections and signaling what could be the start of a fierce two-year struggle over the shape of the federal judiciary," according to the Washington Post. "The move heartened conservatives who worried that Bush would scale back his ambition to move courts to the right and outraged liberals, who called it a violation of the spirit of bipartisanship promised since Democrats captured Congress. Both sides saw it as a possible harbinger for the remainder of Bush's presidency, particularly if a Supreme Court vacancy opens." The Washington Times quotes a Republican aide that there is "zero, zip, zilch chance" that the nominees will be confirmed this year. Sept. 30: -The Richmond Times-Dispatch's Peter Hardin reports that the nominations of Boyle and another Bush pick "appeared all-but-dead after a Senate panel took no action on them yesterday." How the Senate handles those nominees during the post-election session in November - assuming the President renominates them - "could hinge on the outcome of the elections and on which party will control the Senate in 2007." Sept. 29: -Boyle's nomination was again returned to the President because it did not receive unanimous consent to stay pending in the Senate over the long recess. President Bush will have to renominate Boyle, as he did on Sept. 5, to keep his confirmation chances alive. -The Senate Judiciary Committee today failed to vote on Boyle's nomination, passing up its last chance to move him out of committee before the Senate adjourns for the November election. The lack of action on Boyle and other appellate nominees has enfuriated conservatives. The next chance for Boyle would be during a "lame duck" session of Congress after the election. Sept. 27: -Tara McLaughlin of the Durham, N.C. Herald-Sun reports that Boyle's nomination "remained in limbo after Tuesday's U.S. Senate Judiciary Committee meeting, where a quorum needed to hold a vote was not reached." Sept. 19: -Congressional Quarterly's Seth Stern reports that the Judiciary Committee "deferred action" on Judge Boyle's nomination today at a special meeting called by Chairman Specter to consider several nominees. The conservative Committee for Justice, in a press release that "beseeched Senate Republicans to take decisive action," had called the meeting a last chance to move on Boyle so he could be voted on by the full Senate before the November election. -The Judicial Conference of the United States approved a new policy requiring "all federal courts to use conflict-checking computer software to identify cases in which judges may have a financial conflict of interest and should disqualify themselves." This was prompted by "recent reports" that "several judges may have participated in matters in which they had a financial interest," according to a memo sent to all federal judges in August. Sept. 14: -Despite continued lobbying from conservatives and worries that time is running out to confirm controversial nominees, the Senate Judicary Committee - which was expected to vote on Boyle today - failed to take any action for lack of a quorum. Sept. 7: -Chairman Specter puts Boyle on the Judiciary Committee agenda, but as the Raleigh News & Observer later reported: "Democratic Sen. Patrick Leahy of Vermont placed a procedural one-week hold on Boyle. That puts Boyle in line for a committee vote next Thursday." Sept. 6: -Roll Call’s Erin P. Billings reports that despite increased pressure from the White House and conservative activists, “Senate GOP leaders remain skeptical that they can take up and win a major battle over judicial nominations with just four weeks left on the Congressional calendar before Election Day.” Sept. 5: -President Bush formally renominates Terrence Boyle to the 4th U.S. Circuit Court of Appeals, following through on his Aug. 30 announcement. -Sens. Leahy and Kennedy both issue statements condemning the renomination of Boyle, citing his conflicts of interest. Sept. 4: -The Raleigh News & Observer reports that the next several weeks that the Senate is in session are critical for Boyle. Norman Ornstein of the American Enterprise Institute said of Senate Republicans: "This may be their last bite at the apple for nominations like Boyle's. But it sure seems to me this is not likely to go forward without a big controversy." The paper's Barbara Barrett also reports that, behind the scenes, Boyle's former clerks have made more than 30 trips to Washington to push his nomination. One former clerk said, "I think we're on the cusp of getting him a vote." According to the paper, the White House wants to see Boyle confirmed immediately and "is expected to be bending ears in the Senate." And Sen. Elizabeth Dole says she works on Boyle's case "each and every day," adding that she sees "growing and considerable support" among the Gang of 14 moderates. Dole said, "Certainly I would hope we would be able to get a vote in September." Sept. 3: -On Fox News Sunday, Judiciary Committee Chairman Arlen Specter addressed the Boyle nomination: "Well, I think it does have big problems. When you have a judge who has ruled on cases where there was stock of his own involved, yeah. He has given an explanation, that they were minor, that they were oversights, but there are a number of them. But let's consider that. Again, it's a matter of an evaluation and a matter of judgment, but I think that Judge Boyle ought to have an up or down vote in the Senate. Chances are, candidly, Chris, he'll be filibustered, but so far as I'm concerned, as chairman, I'm going to move them right along one at a time and let the full Senate make its judgment." Aug. 30: -President Bush "today announced his intention" to renominate Judge Boyle, along with four other controversial judicial nominees. All five had been sent back to the President earlier in the month because they did not receive unanimous consent to be kept pending in the Senate over the long recess. The Associated Press' Deb Riechmann reports that "Bush's renomination of Boyle was a sign that he had not given up on his effort to get him approved." The New York Times later reported that the Senate could possibly bring up judicial nominees before its fall break. Aug. 23: -The September issue of the American Spectator reports that "the fight over judges is going to come to a head after Labor Day recess, say Senate insiders." According to the report, Boyle will be "the big fight on nominations." The recent decision by the American Bar Association to lower Boyle's rating will be a specific target in the fight. A Senate insider is quoted as saying: "We're going to strip down the ABA and make them the focus of the Boyle vote, and it's about time." Aug. 17: -Congressional Quarterly's Keith Perine reports that the White House will not speculate whether Bush will renominate any or all of the five contentious judicial nominees - including Boyle - sent back by the Senate at the start of the August recess. A Bush spokeswoman told CQ: "We'll know the next step in September." Aug. 7: -Judge Boyle acknowledged errors on two of his financial disclosure reports, for which his accountant takes the blame, according to public documents received by CIR. In a June 19th letter to the financial disclosure committee of the federal judiciary, Boyle wrote: “It has recently come to my attention that there was an incorrect inclusion of a reference to ‘Quintiles stock’ in my 2001 and 2002 financial disclosure reports.” Boyle presided over a case involving Quintiles in 2001 while reporting stock holdings in the company. But in defending himself against conflict of interest charges, he has denied owning Quintiles stock during that time, contradicting his own financial filings. In explaining the apparent errors, Boyle enclosed a May 30th letter from his accountant, Raymond W. Edwards of RSM McGladrey, Inc. Edwards wrote that despite not remembering or keeping complete notes of the exact situation, Boyle clearly “did not actually own those shares during either of those years.” Edwards attributes the mistake on the 2001 report to a “learning curve” and a confusing entry in a previous report. Edwards says his office reported Boyle’s sale of the stock on June 30, 2002 because by then the accountants had probably realized Boyle did not own the stock and therefore used an arbitrary date to wipe it from the records. Edwards concluded: “It is clear to me that the mistake on both reports was mine.” Multiple examples of Boyle’s conflicts of interest are shown here, with supporting documents here and here. August 3: -Before adjourning after midnight for its August recess, the Senate sent the nominations of Judge Boyle and four other controversial judicial nominees back to the President. Bush will have to renominate them or drop them. If the President renominates Boyle when the Senate reconvenes in September, Boyle will still need a Senate floor vote for confirmation. This latest development is a result of a Senate technicality that during long recesses, all nominations must be returned to the President unless there is unanimous consent that they stay pending in the Senate. Though the President can easily just renominate his picks, sending them back to him signals opposition and forces the President to reaffirm his support or reconsider. -Frustrated by the lack of Senate action on Boyle and other controversial nominees, a conservative coalition vows to launch an "August Radio Campaign on Judges" to pressure the Republican leadership. July 31: -Roll Call's Erin P. Billings reports that "Senate Republicans, facing a major political battle and a tight legislative calendar, said last week that there's little chance they can move any of the remaining controversial judicial nominations before the November elections. Both GOP Senators and aides said the four weeks remaining on the pre-election schedule provides them with little opportunity to engage in a potentially brutal floor fight over a polarizing court nominee. The ideal time, they said, would be to consider a nomination now, before the Senate recesses for August and before the campaign season heats up. But that window is all but shut." The Senate recess is scheduled to begin Aug. 4, ending the day after Labor Day. Billings writes that Boyle "arguably is the most inflammatory appointment" pending now. A spokeswoman for Majority Leader Frist told Roll Call that Frist hopes to move on one of the nominees before November. But, Roll Call reported, "GOP Senate sources said it is perhaps more likely that the nominations would get their day in a post-election lame-duck session. If Republicans lose seats to the Democrats on Nov. 7, they may want to try to use those remaining weeks to try to push one or more of those hopefuls through, recognizing that the task will be much more difficult in January." July 25: -In a "Dear Colleague" letter, Majority Leader Frist and Judiciary Committee Chairman Specter send Boyle's explanation of his conflicts of interest to fellow senators. In the letter, Frist and Specter write, "If questions are raised about a nominee, the nominee deserves an opportunity to respond. Speculation and conjecture should not unduly influence the perception of a nominee or the confirmation process. For this reason, we sent Judge Boyle a letter inviting him to address conflict of interest allegations and any other matter that merited further explanation or clarification. In his response, Judge Boyle explains and refutes these allegations and puts them into context. We hope this information is helpful as you further consider his nomination. We look forward to working with you to confirm more qualified judicial nominees to the federal bench during this Congress." -Majority Leader Frist responds to questions from radio talk show host Hugh Hewitt on the status of Judge Boyle and another controversial nominee, saying: “They're both individuals that we're working on every day. And there have been certain accusations that have been made that our staff and we are working on, and we'll have to prioritize it accordingly. But in terms of specific dates, I just can't comment yet.” Frist acknowledges getting pressure to move on Boyle, and says both Republicans and Democrats are holding up his nomination. -The Hill's Alex Bolton reports that Manuel Miranda - head of a coalition of conservative groups - plans to pressure Senate Republicans "to circumvent Senate Majority Leader Bill Frist (R-Tenn.) if he does not schedule a vote on 4th Circuit nominee Terrence Boyle before the August recess." Miranda said that if 16 senators sign a petition on Boyle's nomination, they could force a floor vote, but he acknowledged it would be hard to do so without Frist's approval. Meanwhile, Sen. Richard Burr (R-N.C.) has said that the timing of a vote on Boyle is "entirely" up to Frist. According to The Hill, "That has lead some conservatives to conclude more pressure needs to be placed on Frist." -A coalition of 80 conservative leaders - including Phyllis Schlafly, Grover Norquist and Alan Keyes - signed a letter to Senate Republicans asking that “you join our members in supporting Judge Boyle's nomination and vote to confirm Judge Boyle immediately, without any further delay.” The letter goes on to defend Boyle against criticism from law enforcement groups. July 17: -The American Bar Association lowers its rating for Judge Boyle. The ABA committee that rates judicial nominees revoked its unanimous "well qualified" rating. A majority of the ABA committee now rates Boyle "qualified," while a minority still calls him well qualified, with one abstention. July 16: -One of Boyle's former clerks, Washington-based attorney Lars Liebeler, attacks Salon and CIR in a letter to the Washington Times. He also asserts that Boyle sold all his Quintiles stock before presiding over a 2001 Quintiles case - and that Boyle's accountant confirmed this in a letter made available to all senators. Salon later points out this would mean Boyle made errors on two of his financial disclosure filings, where he reported owning Quintiles in 2001 and selling it in 2002. July 14: -The Gang of 14, a moderate coalition of seven Democrats and seven Republicans who helped avert a Senate war over judicial nominees last year, met July 13th to discuss current controversial nominees, including Boyle. The Gang could make or break a nominee's chances of confirmation. The Arkansas News Bureau reports that the senators met to "touch base" and didn't announce any action. July 13: -CIR reports in Salon that for those conflicts Boyle disputed in his letter, the judge's explanation contradicts his own financial filings and federal ethics law. One ethics expert says Boyle was ""trying to fudge the language." -The Raleigh News & Observer quotes Sen. Richard Burr (R-NC) as saying that since Boyle has responded to the conflict of interest charges, "At the end of the day, this is a decision Bill Frist and Arlen Specter have to make." A Frist spokeswoman told the paper that a vote on Boyle has not been scheduled. July 12: -Boyle's letter of explanation to Senate Majority Leader Bill Frist and Judiciary Committee Chairman Arlen Specter is made public. Boyle admits to some of the conflicts, calling them inadvertent, minor mistakes. He wrote: "While my stock holdings were relatively insignificant, I regret that the oversight occurred. It certainly was not my intention to participate in a case where I held stock in one of the parties." July 11: -Roll Call’s John Stanton reports that “the White House, Frist and Judiciary Chairman Arlen Specter (R-Pa.) are continuing to work behind the scenes on a handful of controversial judges, including Bush nominee Terrence Boyle, hoping to free up one or more of these nominations from the partisan morass in which they have been stuck.” Frist, who aims to adjourn the Senate by Sept. 30, wants to focus this fall on highlighting “the GOP's accomplishments since the Republicans took control of Congress in 1994,” Stanton reports. For judicial nominations, that means that, “in contrast to the 2004 election, when Republicans bemoaned Democratic obstruction of judicial nominees, the GOP this fall likely will emphasize its success in confirming judicial nominees, highlighting the fact that Bush has had more of his judicial picks confirmed at this point in his career than former President Bill Clinton had, and emphasizing that a majority of the judiciary now is made up of conservative Republicans.” A GOP aide told Stanton that limiting Senate floor fights over contentious nominees has allowed Frist to confirm more non-controversial ones. July 7: -The Raleigh News & Observer reports: "The battle continues between U.S. Sen. Elizabeth Dole and Salon.com." The paper also notes that "Dole, U.S. Sen. Richard Burr and others have been pushing Senate Majority Leader Bill Frist to schedule a floor vote on Boyle, with conservatives hoping Democrats' opposition will galvanize Republicans months before midterm elections." July 5: -Joan Walsh, editor in chief of Salon.com, responds to Sen. Elizabeth Dole's op-ed in the Washington Times: "Salon takes accuracy very seriously, and the record shows that Mrs. Dole's charges are false...It is up to the Senate to determine whether Judge Boyle's conflicts of interest disqualify him from a seat on the 4th U.S. Circuit Court of Appeals. But Mrs. Dole's political agenda shouldn't obscure the fact that Salon reported on Judge Boyle's record, and the law, accurately." July 3: -Charles Hurt of the Washington Times reports: "In coming weeks, Republicans on Capitol Hill plan for the first major push on judges since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. were confirmed to the Supreme Court." June 29: -Sen. Elizabeth Dole (R-NC) writes an op-ed in the Washington Times: "The smear campaign began in earnest last month when the liberalInternetmagazine Salon.com published two articles accusing Judge Boyle of engaging in unethical behavior by participating in cases where he had a supposed financial interest. An examination of these cases, however, shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent." June 28: -Sen. Dole writes an op-ed in the Charlotte Observer: “Judge Boyle has never knowingly heard a case in which he had a conflict of interest, used his office for personal gain or abused the trust of the people he was appointed to serve. These allegations have emerged at a strategically determined time, in a frantic partisan attempt to distract from the merits of his nomination." -Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee puts this statement in the record: “Publicly available documents, including court docket sheets and Judge Boyle’s financial disclosure forms, appear to support the public reports that Judge Boyle ruled in multiple cases in which he held stock in one party…These matters used to be investigated in a bipartisan way. In fact, after these developments were reported in the media, the seven Democratic members in the group that helped avert the Republican “nuclear option” wrote a letter asking for a new hearing to look into the conflict of interest allegations. I regret that the Republican leadership is apparently determined not to allow a bipartisan investigation to be completed and determined not to hold the follow-up hearing.….If this nomination is not withdrawn, and the Republican leadership is determined to move forward with this nomination in response to right-wing pressure groups, issues arising from Judge Boyle’s many alleged conflicts of interest can be best addressed in a hearing, where Senators can ask questions of the nominee, listen to his answers, and assess the credibility of his explanations regarding the conflicts. That is our process. There is no reason to depart from it now." -NPR’s Nina Totenberg quotes one Republican member of the Gang of 14, referring to Boyle and other controversial nominees: “If these nominations were to come up for a vote, they might well lose, and there would be a lot of Republican blood on the floor afterwards.” June 26: -Legal Times' T.R. Goldman quotes an unidentified Senate GOP staff counsel saying, “We found five cases in which there were strict technical violations in which Boyle should have recused himself…But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.” June 25: -Sen. Jon Kyl, a Republican member of the Judiciary Committee, discussed the prospects of Boyle and another controversial nominee with radio talk show host Hugh Hewitt: “I never quite know what kind of deals might have been made between the chairman and the ranking member to try to get other nominees out. But both of these have been languishing, and others have skipped over them, which leads me to believe that there have been some accommodations, shall we say, to at least move them to the back of the line. And even though at least one of them is ready for floor action, I doubt that you’ll see that quickly.” June 23: -Majority Leader Bill Frist and Senate Judiciary Chairman Arlen Specter write to Judge Boyle, offering him the “opportunity to respond in writing.” They write, “As you know, questions recently surfaced about your participation in cases in which you may have had a financial interest. We believe you deserve the opportunity to address these issues directly, as well as any other matter that you believe merits further explanation or clarification.” -North Carolina Republican Senators Elizabeth Dole and Richard Burr write a “Dear Colleague” letter saying that an examination of the conflicts documented by CIR “shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent. Moreover, there is absolutely no evidence to suggest that Judge Boyle knowingly heard a case in which he had a conflict of interest, used his office for personal gain, or abused the trust of the people he was appointed to serve.” June 22: -The Hill’s Alexander Bolton reports that “despite a likely fatal lack of support among the Republicans in the Gang of 14, conservative activists this week pushed hard to move the forlorn nomination of Judge Terrence Boyle.” Some Republicans in the Gang were ready to sign the letter asking for another hearing for Boyle, but were pressured to keep quiet by Sen. Mike DeWine (R-OH), who faces a tough fight for reelection, the Hill reports. Sen. Lindsey Graham (R-SC) said he would also support a second hearing for Boyle to address the conflicts of interest. According to the story, “A senior GOP aide said the Senate could vote on Boyle during July or after the August recess. The Senate Republican leadership is testing Boyle’s support but does not want a floor vote it cannot win, the aide said.” Meanwhile, the White House doesn’t appear to be fully committed to Boyle, the Hill explains: “The White House also has not responded to requests for information on Boyle’s financial interests from conservative groups seeking to defend the nominee.” June 20: -Five of Boyle’s former law clerks write a letter to the Wall Street Journal: “Sen. Bill Frist should proceed promptly with a vote as previously promised, taking the fight to the floor if necessary to rebut the erroneous claims. Otherwise, the appellate confirmation process will spiral downward into the realm of cheap politics and personal attacks.” June 19: -Legal Times’ Joe Crea reports that, despite pressure by conservative activists, Majority Leader Bill Frist “is not likely to gear up for a showdown on judges as a parting shot before he retires from the Senate later this year.” Crea quotes a former Republican Judiciary Committee staffer as saying: “There’s a difference when you put someone up based on their ideology and background and have a worthwhile debate and come out on top. But if you are going to put somebody up and the debate is going to be about if you broke the law or the war on terror policies of the administration...well, it’s a conscious decision by the majority leader not to erect this debate.” -Conservative groups issue press releases expressing frustration at the one-year anniversary of the Judiciary Committee’s referral of Judge Boyle’s nomination to the Senate floor. The Committee for Justice urges Frist to appoint a Senate “shepherd” to guide and defend Boyle’s nomination. June 13: -The Hill’s Jonathan Allen reports that, as Republican Senators pushed for a constitutional amendment to ban desecration of the flag, a coalition of conservative groups rebelled by calling for action on judicial nominees instead of the flag amendment. Allen wrote, “The broadside by nomination-focused conservatives raises the prospect that an effort to fire up conservatives could backfire on Senate Majority Leader Bill Frist (R-Tenn.) as Republicans try to draw distinctions between the parties before the November election.” The activists “warned that Republicans will suffer damage to their majority if they do not escalate a simmering battle over judges.” They also worry that Republican losses in November could snuff out the prospects of current nominees, Allen wrote. -The letter by conservative activists to Republican Senators referred specifically to Judge Boyle: “Rather ordinary, insubstantial, eleventh-hour charges against him have gone unanswered. Not a single senator has addressed the charges in his defense. It is no wonder that the White House is having trouble recruiting qualified men and women to serve on the bench. Opponents are to be expected, but not the carelessness of friends like you.” June 12: -Judiciary Committee Chairman Arlen Specter’s staff announces multiple briefings to be held each day throughout the week on Boyle’s conflicts of interest, for all interested Senate staff. The Hill later reported that staffers from about 40 Senate offices met with committee staff. -A coalition of conservative advocates held a press conference in Washington, D.C., urging Republican Senators to move forward on confirming Bush’s judicial nominees. Several defended Judge Boyle and called for a floor vote on his nomination. June 9: -Tim Funk of the Charlotte Observer reports that Sen. Richard Burr (R-NC) “said he had been told by the White House and by Frist that Boyle will get a floor vote.” June 7: -A Wall Street Journal editorial addressed Boyle’s chances: “Democrats now say they'll filibuster his nomination. They are distorting a couple of Judge Boyle's civil rights decisions and making conflict-of-interest allegations that add up at worst to minor infractions. But Republicans don't want a fight in an election year over race or ethics. And Judge Boyle's onetime Senate champion -- Jesse Helms -- has long since retired. A controversial nominee without an angel to guide him through today's polarized Senate is in trouble.” -The Hill’s Alexander Bolton reports that “White House officials are making a concerted effort to cooperate with outside conservative groups to support and defend President Bush’s nominees to the federal bench, and they are also planning to work more closely with the Senate on confirming the nominees.” According to Bolton, “the Department of Justice is crafting a memo on Boyle’s conduct as a judge.” Sen. Jeff Sessions (R-AL) told The Hill that he met with Boyle and a White House aide “in a meeting he said he assumed was set up by the administration.” June 1: -The Committee for Justice circulates talking points minimizing Judge Boyle’s conflicts of interest and comparing them to those of Supreme Court Justices: “Dems Use Alleged Conflict Of Interest Charges Against Circuit Court Nominee Terrence Boyle, Ignore Conflict Of Interest Questions Justices Ruth Bader Ginsburg And Stephen Breyer Faced.” The Hill later reports that the talking points “were written in the signature style of the White House and its ally the Republican National Committee.” May 25: -Human Events’ Robert B. Bluey reports that Majority Leader Bill Frist held a conference call with conservative activists “to placate their mounting concerns about the lack of progress on judicial nominees. Judging from reaction today, Frist failed miserably.” Bluey continues: “Frist ducked a question about stalled nominees Terence Boyle and William Haynes, saying he was still waiting for advice from Judiciary Chairman Arlen Specter (R.-Pa.) on how to proceed. When did the Senate GOP leader start taking his cues from one of the party’s most liberal members? And even if that is the case, why would he use that as his excuse during a call with conservative activists? Frist will assert that he needs Specter on his side if he’s to make any progress on confirming judicial nominees, but that’s baloney. Frist sets the agenda, and if confirming nominees is a priority for him, it will be for the rest of the caucus.” -Bloomberg reports that “Senate Republican leader Bill Frist retreated from his plan to promote Boyle to an appellate judgeship.” Frist didn’t commit to which nominee he would bring to the floor next. “‘We will take the others one by one,’ Frist told reporters this week. He said he had no plans to bring up Boyle.” May 23: “Bench Warfare”: CIR reports in Salon.com that, with Boyle's nomination hanging in doubt, a group of fourteen former law clerks to the judge launched an ambitious campaign to support him. They circulated a two-page memo aiming to refute, point-by-point, the CIR report. The memo, however, failed to disprove any aspect of the CIR report. In fact, it contained numerous distortions and factual errors, and ignored the letter of federal ethics law. The memo's inaccuracies -- as well as the ethics violations by Boyle first raised by Salon -- can all be verified by reviewing publicly available court records and financial disclosures. The documents debunking the memo are posted by CIR here. May 3: “Key Bush Judge Under Ethics Cloud”: CIR reports in Salon.com that key Democrats denounced Judge Boyle on Capitol Hill, citing the CIR report that he 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. May 1: “Controversial Bush Judge Broke Ethics Law”: CIR's first story documenting conflicts of interest by Judge Terrence W. Boyle, a long-time federal judge in North Carolina, who was nominated by President Bush in 2001 to the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. This report in Salon.com shows that since his nomination, Boyle issued orders in at least nine cases that involved five different corporations in which he reported stock holdings, according to financial and court documents. Boyle's financial disclosure filings and other documents used to research the story are posted by CIR here.

Embattled Bush Judge Disputes Salon Report

Fri, 02 Mar 2007 12:37:49 -0800

One of President Bush's most controversial judicial nominees has admitted to presiding over several cases in which he held a financial interest, in violation of federal law. In his first public response to the ethical violations revealed by the Center for Investigative Reporting and Salon on May 1, Judge Terrence W. Boyle of North Carolina said the conflicts were inadvertent, minor mistakes. In a letter to Senate Majority Leader Bill Frist and Judiciary Committee chairman Arlen Specter, made public July 12, Boyle said that hearing charges of conflicts of interest "surprised and upset me." He nevertheless disputed several of the charges. The Salon/CIR investigation showed that Boyle issued orders in at least nine cases involving corporations in which he reported stock holdings. "In approximately four cases, the screening system in place at the Clerk's Office and in my chambers missed the appearance of a potential conflict," Boyle wrote. "Accordingly, I unknowingly and unintentionally participated in these cases while I held a minimal number of shares in one of the parties." He added: "While my stock holdings were relatively insignificant, I regret that the oversight occurred. It certainly was not my intention to participate in a case where I held stock in one of the parties." The conflicts of interest have thrown into doubt Boyle's confirmation to the 4th U.S. Circuit Court of Appeals -- second only in judicial authority to the U.S. Supreme Court. Frist indicated in April that he would push for a full Senate vote on Boyle, a favorite of conservatives, in May. After the report on his ethical violations, however, top Democrats called for Boyle's nomination to be withdrawn. On Wednesday, Vermont Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee, reaffirmed his opposition. "These breaches and his avoiding full accountability compound the already compelling reasons why this nomination has become so controversial, including strong opposition from many law enforcement groups around the country," Leahy told Salon. "The White House should withdraw this nomination instead of pushing for this promotion to a lifetime seat on one of our highest courts." Specter, who had labeled the conflicts potentially "disqualifying," had conducted his own investigation. He and Frist wrote to Boyle asking for a written explanation of the ethical conflicts. (Frist and Specter did not return Salon's calls for comment Wednesday.) In his letter, Boyle mounted a defense of his record that mirrors one made by North Carolina Sen. Elizabeth Dole, and one spelled out in a memo circulated by the judge's former clerks. As Salon reported on May 23, the defense contains inaccuracies and ignores the letter of federal ethics law. Boyle wrote that the conflict involving Quintiles, a pharmaceutical-services company, is "categorically untrue." The case occurred in 2001, when Boyle denies owning any stock in Quintiles. However, Boyle's official financial disclosure report covering the year 2001 lists stock in Quintiles. His 2002 filing shows that he sold his Quintiles stock after the case was over. Boyle did not address this inconsistency in his letter. Boyle also denied that he had any financial interest in three cases involving Midway Airlines. Boyle was a trustee of one of his children's trusts, which held Midway stock. The law on judicial conflicts of interest makes it clear that a judge who is a trustee does have a financial interest in the trust. Although Boyle regretted his lack of oversight in four cases, he went on to write that "whatever minor financial interest I may have had in the case in no way affected my decision-making or the outcome of the case." Nevertheless, federal statute since 1974 does not allow judges to sit on cases in which they have a financial interest, no matter how small, and no matter how the case may turn out. Leslie W. Abramson, a judicial ethics expert at the University of Louisville's law school, said, "Did he violate the statute? Yes." Professor Monroe Freedman of Hofstra University School of Law added that Boyle was "trying to fudge the language" by calling clear-cut violations "the appearance of a potential conflict." In his letter, Boyle stated he always makes a "conscientious effort" to screen cases for possible conflicts, and informs his court clerk's office of his financial interests for additional screening. "This method was the best practice available over time, but it was not flawless," he wrote. "Some cases were missed by the screening process." But Michael Brooks, the acting clerk of Boyle's court, told Salon in April that the clerk's office does not screen for financial conflicts, leaving that to the individual judge. Brooks said the court didn't use a computer system to catch conflicts because "you get some false positives that way, and we've been successful with the current situation." Boyle, however, apparently contradicted Brooks and wrote that the computerized system wasn't even available "until recent weeks." Neither Brooks nor Boyle returned calls Wednesday seeking comment. Boyle has not responded to numerous calls and a detailed letter from Salon, asking for an explanation before the original report on his conflicts was published. He did state in his letter to Frist that he wrote a letter of explanation to the Chief Judge of the 4th Circuit and President Bush.

Money Trails to the Federal Bench

Carrie Ching — Fri, 02 Mar 2007 12:37:49 -0800

* * * * *

Updates

-- A federal judge identified by CIR for making campaign contributions while on the bench has apologized for violating the judicial code of conduct. Judge Deborah L. Cook of Ohio made two political donations after she was appointed by President Bush to the 6th U.S. Circuit Court of Appeals. In response to CIR’s reporting, Chief Judge Danny J. Boggs of the 6th Circuit initiated a formal complaint of judicial misconduct against Cook and made the results public on Jan. 10. -- The American Bar Association adopted a new Model Code of Judicial Conduct on Feb. 12 that prohibits campaign contributions by candidates seeking appointment to judicial office, such as federal judicial candidates. The code of conduct serves as a recommendation to states and the federal judiciary. -- Incoming Senate Judiciary Committee chairman Patrick Leahy and Sen. Russ Feingold take a judge to task for his campaign contributions. Judge Thomas Hardiman gave money to key Republicans while he was under consideration for his district judgeship. Bush later nominated him for a promotion to the appellate bench. Pointed questions from Leahy and Feingold -- and Hardiman's answers -- can be viewed here. -- Senate candidate Jon Tester of Montana used CIR's report in campaigning against Republican incumbent Sen. Conrad Burns. (Tester ultimately won the pivotal race.) The report revealed that a Montana lawyer and his wife had given $2,000 to Burns the day before Burns recommended him for a federal judgeship. "It doesn't smell right," Tester told the Associated Press, in a story that broke just days before the election. "It's not the way representative government is supposed to work." For comments or questions about the report, contact Will Evans at wevans@cironline.org. Research assistance for this investigation was provided by Adam Satariano and Rina Palta.

Judge Apologizes

Fri, 02 Mar 2007 12:37:49 -0800

A federal judge identified by the Center for Investigative Reporting for making campaign contributions while on the bench has apologized for violating the judicial code of conduct. Judge Deborah L. Cook of Ohio made two political donations after she was appointed by President Bush to the 6th U.S. Circuit Court of Appeals in 2003. A CIR report and story for Salon.com on Oct. 31 revealed that both Cook and a Clinton-appointed judge, Dean D. Pregerson of California, had apparently given campaign contributions, though federal judges are prohibited from doing so. In response to CIR’s reporting, Chief Judge Danny J. Boggs of the 6th Circuit initiated a formal complaint of judicial misconduct against Cook and – contrary to normal procedure – made the results public on Jan. 10. “I violated this proscription against federal judges making political contributions early in what I hope will be a long tenure,” Cook wrote in her letter of apology, which was filed with Judge Boggs’ order. “Though not an excuse, my misstep here resulted from habit and a lack of awareness of the prohibition.” Cook wrote that she was used to making contributions as a state judge. According to her letter, she did not attend the “New Judges School” after she was confirmed as a federal judge and “thus missed being alerted there to the federal canon.” The “Baby Judges School,” as it is often called by judges, is a non-mandatory training and orientation for newly appointed judges. In December 2005, Cook gave $800 to former Sen. Mike DeWine, only to have the money returned. It was from the senator’s campaign, Cook wrote, that she first learned that federal judges cannot contribute. “I sincerely apologize for this error, and regret both that this happened and any resulting embarrassment to the court. It will not happen again, of course,” she wrote. Chief Judge Boggs wrote in his Jan. 10 order that Cook consented to making her apology public and “also has assured me that such conduct will not happen in the future.” He considers the case closed. Professor Arthur D. Hellman of the University of Pittsburgh School of Law told CIR that Boggs’ action will send a strong signal to judges across the country. One result, he said, might be better attendance at “Baby Judges School.” “I think one of the things this might well do is to put a little more pressure on newly appointed judges to take that training. They should not assume that they know everything that they’re supposed to do,” said Hellman. “Maybe chief judges will take it upon themselves to say to newly appointed judges that there’s really no excuse: ‘I know you wanted to take your vacation, but look at what happened to Judge Cook, you don’t want that to happen to you.’” Hellman, who has testified before Congress on the issue of judicial misconduct, said Chief Judge Boggs should be commended for taking the rare step of initiating the judicial misconduct process. “That’s what you want the chief judge to do,” he said. Admitting to the violations is a turnaround for Judge Cook. Her chambers had answered CIR’s repeated requests for comment by faxing a one-sentence response suggesting that her husband made the donations, not her. “Campaigns attributed contributions from (husband) Robert Linton to Deborah Cook,” read the unsigned statement. The CIR/Salon investigation also found campaign contributions in the name of a Clinton appointee, Judge Dean D. Pregerson of the Central District of California, while he was on the bench. Federal records show a $1,000 donation from Pregerson to Sen. Joe Biden of Delaware in 2002, listing Pregerson’s former law firm as his occupation. Previous donations in 1999 and 2000 to other candidates listed Pregerson as the donor and “federal judge” as his occupation. Pregerson’s assistant said in October that the contributions in his name were actually made by his wife. Chief Judge Mary M. Schroeder of the 9th U.S. Circuit Court of Appeals “made an inquiry” into the subject and accepted Pregerson’s explanation that his wife had made the donations through a joint checking account, 9th Circuit spokesman David Madden told CIR. “She was assured by Judge Pregerson that that practice would stop,” said Madden. “She has concluded the matter.”

Bush drops Boyle nomination

Will Evans — Tue, 09 Jan 2007 00:00:00 -0800

Bloomberg reports: "Boyle declined an invitation last month by Attorney General Alberto Gonzales to withdraw his nomination, said Lars H. Liebeler, a Washington lawyer and former Boyle law clerk who spoke on behalf of the judge. 'The attorney general called Judge Boyle and told him that Haynes, Myers and Wallace had submitted letters saying their nominations should be withdrawn and asked Judge Boyle what he wanted to do,' said Liebeler, who has been championing Boyle's nomination. 'Judge Boyle said, if the president didn't want to renominate him, he would understand that decision but he was not going to quit.' On Jan. 5, Gonzales telephoned Boyle to say that Bush's advisers had concluded that the judge couldn't win Senate confirmation and recommended Bush not resubmit his name to the Senate, Liebeler said. He said Boyle told Gonzales that he understood the political reality."

Boyle denied, infuriating conservatives

Will Evans — Fri, 29 Sep 2006 00:00:00 -0700

Boyle's nomination was again returned to the President because it did not receive unanimous consent to stay pending in the Senate over the long recess. President Bush will have to renominate Boyle, as he did on Sept. 5, to keep his confirmation chances alive. The Senate Judiciary Committee today failed to vote on Boyle's nomination, passing up its last chance to move him out of committee before the Senate adjourns for the November election. The lack of action on Boyle and other appellate nominees has infuriated conservatives. The next chance for Boyle would be during a "lame duck" session of Congress after the election.

Federal courts to use "conflict-checking" software

Will Evans — Tue, 19 Sep 2006 00:00:00 -0700

The Judicial Conference of the United States approved a new policy requiring "all federal courts to use conflict-checking computer software to identify cases in which judges may have a financial conflict of interest and should disqualify themselves." This was prompted by "recent reports" that "several judges may have participated in matters in which they had a financial interest," according to a memo sent to all federal judges in August.

Leahy and Kennedy condemn Boyle renomination

Will Evans — Tue, 05 Sep 2006 00:00:00 -0700

President Bush formally renominates Terrence Boyle to the 4th U.S. Circuit Court of Appeals, following through on his Aug. 30 announcement. Also, Senators Leahy and Kennedy both issue statements condemning the renomination of Boyle, citing his conflicts of interest.

Senate Republicans push for Boyle

Will Evans — Mon, 04 Sep 2006 00:00:00 -0700

The Raleigh News & Observer reports that the next several weeks that the Senate is in session are critical for Boyle. Norman Ornstein of the American Enterprise Institute said of Senate Republicans: "This may be their last bite at the apple for nominations like Boyle's. But it sure seems to me this is not likely to go forward without a big controversy." The paper's Barbara Barrett also reports that, behind the scenes, Boyle's former clerks have made more than 30 trips to Washington to push his nomination. One former clerk said, "I think we're on the cusp of getting him a vote." According to the paper, the White House wants to see Boyle confirmed immediately and "is expected to be bending ears in the Senate." And Sen. Elizabeth Dole says she works on Boyle's case "each and every day," adding that she sees "growing and considerable support" among the Gang of 14 moderates. Dole said, "Certainly I would hope we would be able to get a vote in September."

Specter speaks on Fox News about Boyle

Will Evans — Sun, 03 Sep 2006 00:00:00 -0700

On Fox News Sunday, Judiciary Committee Chairman Arlen Specter addressed the Boyle nomination: "Well, I think it does have big problems. When you have a judge who has ruled on cases where there was stock of his own involved, yeah. He has given an explanation, that they were minor, that they were oversights, but there are a number of them. But let's consider that. Again, it's a matter of an evaluation and a matter of judgment, but I think that Judge Boyle ought to have an up or down vote in the Senate. Chances are, candidly, Chris, he'll be filibustered, but so far as I'm concerned, as chairman, I'm going to move them right along one at a time and let the full Senate make its judgment."

Boyle acknowledges errors on financial disclosures

Will Evans — Mon, 07 Aug 2006 00:00:00 -0700

Judge Boyle acknowledged errors on two of his financial disclosure reports, for which his accountant takes the blame, according to public documents received by CIR. In a June 19th letter to the financial disclosure committee of the federal judiciary, Boyle wrote: “It has recently come to my attention that there was an incorrect inclusion of a reference to ‘Quintiles stock’ in my 2001 and 2002 financial disclosure reports.” Boyle presided over a case involving Quintiles in 2001 while reporting stock holdings in the company. But in defending himself against conflict of interest charges, he has denied owning Quintiles stock during that time, contradicting his own financial filings. In explaining the apparent errors, Boyle enclosed a May 30th letter from his accountant, Raymond W. Edwards of RSM McGladrey, Inc. Edwards wrote that despite not remembering or keeping complete notes of the exact situation, Boyle clearly “did not actually own those shares during either of those years.” Edwards attributes the mistake on the 2001 report to a “learning curve” and a confusing entry in a previous report. Edwards says his office reported Boyle’s sale of the stock on June 30, 2002 because by then the accountants had probably realized Boyle did not own the stock and therefore used an arbitrary date to wipe it from the records. Edwards concluded: “It is clear to me that the mistake on both reports was mine.” Multiple examples of Boyle’s conflicts of interest are cited in this Salon.com article, with supporting documents here and here.

Conservatives launch radio campaign in support of Boyle

Will Evans — Thu, 03 Aug 2006 00:00:00 -0700

Before adjourning after midnight for its August recess, the Senate sent the nominations of Judge Boyle and four other controversial judicial nominees back to the President. Bush will have to renominate them or drop them. If the President renominates Boyle when the Senate reconvenes in September, Boyle will still need a Senate floor vote for confirmation. This latest development is a result of a Senate technicality that during long recesses, all nominations must be returned to the President unless there is unanimous consent that they stay pending in the Senate. Though the President can easily just renominate his picks, sending them back to him signals opposition and forces the President to reaffirm his support or reconsider. Also, frustrated by the lack of Senate action on Boyle and other controversial nominees, a conservative coalition vows to launch an "August Radio Campaign on Judges" to pressure the Republican leadership.

Roll Call reports on Senate nomination battle

Will Evans — Mon, 31 Jul 2006 00:00:00 -0700

Roll Call's Erin P. Billings reports that "Senate Republicans, facing a major political battle and a tight legislative calendar, said last week that there's little chance they can move any of the remaining controversial judicial nominations before the November elections. Both GOP Senators and aides said the four weeks remaining on the pre-election schedule provides them with little opportunity to engage in a potentially brutal floor fight over a polarizing court nominee. The ideal time, they said, would be to consider a nomination now, before the Senate recesses for August and before the campaign season heats up. But that window is all but shut." The Senate recess is scheduled to begin Aug. 4, ending the day after Labor Day. Billings writes that Boyle "arguably is the most inflammatory appointment" pending now. A spokeswoman for Majority Leader Frist told Roll Call that Frist hopes to move on one of the nominees before November. But, Roll Call reported, "GOP Senate sources said it is perhaps more likely that the nominations would get their day in a post-election lame-duck session. If Republicans lose seats to the Democrats on Nov. 7, they may want to try to use those remaining weeks to try to push one or more of those hopefuls through, recognizing that the task will be much more difficult in January."

American Bar Association lowers Boyle rating

Will Evans — Mon, 17 Jul 2006 00:00:00 -0700

The American Bar Association lowers its rating for Judge Boyle. The ABA committee that rates judicial nominees revoked its unanimous "well qualified" rating. A majority of the ABA committee now rates Boyle "qualified," while a minority still calls him well qualified, with one abstention.

Boyle's former clerk attacks Salon and CIR

Will Evans — Sun, 16 Jul 2006 00:00:00 -0700

One of Boyle's former clerks, Washington-based attorney Lars Liebeler, attacks Salon and CIR in a letter to the Washington Times. He also asserts that Boyle sold all his Quintiles stock before presiding over a 2001 Quintiles case - and that Boyle's accountant confirmed this in a letter made available to all senators. Salon later points out this would mean Boyle made errors on two of his financial disclosure filings, where he reported owning Quintiles in 2001 and selling it in 2002.

Boyle "trying to fudge the language" about conflicts

Will Evans — Thu, 13 Jul 2006 00:00:00 -0700

CIR reports in Salon that for those conflicts Boyle disputed in his letter, the judge's explanation contradicts his own financial filings and federal ethics law. One ethics expert says Boyle was ""trying to fudge the language." Also, the Raleigh News & Observer quotes Sen. Richard Burr (R-NC) as saying that since Boyle has responded to the conflict of interest charges, "At the end of the day, this is a decision Bill Frist and Arlen Specter have to make." A Frist spokeswoman told the paper that a vote on Boyle has not been scheduled.

Boyle letter says conflict was an "oversight"

Will Evans — Wed, 12 Jul 2006 00:00:00 -0700

Boyle's letter of explanation to Senate Majority Leader Bill Frist and Judiciary Committee Chairman Arlen Specter is made public. Boyle admits to some of the conflicts, calling them inadvertent, minor mistakes. He wrote: "While my stock holdings were relatively insignificant, I regret that the oversight occurred. It certainly was not my intention to participate in a case where I held stock in one of the parties."

Senator Dole battles Salon.com over Boyle

Will Evans — Fri, 07 Jul 2006 00:00:00 -0700

The Raleigh News & Observer reports: "The battle continues between U.S. Sen. Elizabeth Dole and Salon.com." The paper also notes that "Dole, U.S. Sen. Richard Burr and others have been pushing Senate Majority Leader Bill Frist to schedule a floor vote on Boyle, with conservatives hoping Democrats' opposition will galvanize Republicans months before midterm elections."

Frist and Specter send letter supporting Boyle to other senators

Will Evans — Wed, 05 Jul 2006 00:00:00 -0700

In a "Dear Colleague" letter, Majority Leader Frist and Judiciary Committee Chairman Specter send Boyle's explanation of his conflicts of interest to fellow senators. In the letter, Frist and Specter write, "If questions are raised about a nominee, the nominee deserves an opportunity to respond. Speculation and conjecture should not unduly influence the perception of a nominee or the confirmation process. For this reason, we sent Judge Boyle a letter inviting him to address conflict of interest allegations and any other matter that merited further explanation or clarification. In his response, Judge Boyle explains and refutes these allegations and puts them into context. We hope this information is helpful as you further consider his nomination. We look forward to working with you to confirm more qualified judicial nominees to the federal bench during this Congress."

Salon responds to Dole

Will Evans — Wed, 05 Jul 2006 00:00:00 -0700

Joan Walsh, editor in chief of Salon.com, responds to Sen. Elizabeth Dole's op-ed in the Washington Times: "Salon takes accuracy very seriously, and the record shows that Mrs. Dole's charges are false...It is up to the Senate to determine whether Judge Boyle's conflicts of interest disqualify him from a seat on the 4th U.S. Circuit Court of Appeals. But Mrs. Dole's political agenda shouldn't obscure the fact that Salon reported on Judge Boyle's record, and the law, accurately."

Senator Dole slaps Salon

Will Evans — Thu, 29 Jun 2006 00:00:00 -0700

Sen. Elizabeth Dole (R-NC) writes an op-ed in the Washington Times: "The smear campaign began in earnest last month when the liberalInternetmagazine Salon.com published two articles accusing Judge Boyle of engaging in unethical behavior by participating in cases where he had a supposed financial interest. An examination of these cases, however, shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent."

Leahy requests hearing on Boyle conflicts

Will Evans — Wed, 28 Jun 2006 00:00:00 -0700

Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee puts this statement in the record: “Publicly available documents, including court docket sheets and Judge Boyle’s financial disclosure forms, appear to support the public reports that Judge Boyle ruled in multiple cases in which he held stock in one party…These matters used to be investigated in a bipartisan way. In fact, after these developments were reported in the media, the seven Democratic members in the group that helped avert the Republican “nuclear option” wrote a letter asking for a new hearing to look into the conflict of interest allegations. I regret that the Republican leadership is apparently determined not to allow a bipartisan investigation to be completed and determined not to hold the follow-up hearing.….If this nomination is not withdrawn, and the Republican leadership is determined to move forward with this nomination in response to right-wing pressure groups, issues arising from Judge Boyle’s many alleged conflicts of interest can be best addressed in a hearing, where Senators can ask questions of the nominee, listen to his answers, and assess the credibility of his explanations regarding the conflicts. That is our process. There is no reason to depart from it now."

Senate GOP counsel says Boyle conflicts were an "administrative oversight"

Will Evans — Mon, 26 Jun 2006 00:00:00 -0700

Legal Times' T.R. Goldman quotes an unidentified Senate GOP staff counsel saying, “We found five cases in which there were strict technical violations in which Boyle should have recused himself…But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.”

Frist and Specter ask Boyle for explanation

Will Evans — Fri, 23 Jun 2006 00:00:00 -0700

Majority Leader Bill Frist and Senate Judiciary Chairman Arlen Specter write to Judge Boyle, offering him the “opportunity to respond in writing.” They write, “As you know, questions recently surfaced about your participation in cases in which you may have had a financial interest. We believe you deserve the opportunity to address these issues directly, as well as any other matter that you believe merits further explanation or clarification.” Also, North Carolina Republican Senators Elizabeth Dole and Richard Burr write a “Dear Colleague” letter saying that an examination of the conflicts documented by CIR “shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent. Moreover, there is absolutely no evidence to suggest that Judge Boyle knowingly heard a case in which he had a conflict of interest, used his office for personal gain, or abused the trust of the people he was appointed to serve.”

Conservatives "push hard" for Boyle

Will Evans — Thu, 22 Jun 2006 00:00:00 -0700

The Hill’s Alexander Bolton reports that “despite a likely fatal lack of support among the Republicans in the Gang of 14, conservative activists this week pushed hard to move the forlorn nomination of Judge Terrence Boyle.” Some Republicans in the Gang were ready to sign the letter asking for another hearing for Boyle, but were pressured to keep quiet by Sen. Mike DeWine (R-OH), who faces a tough fight for reelection, the Hill reports. Sen. Lindsey Graham (R-SC) said he would also support a second hearing for Boyle to address the conflicts of interest. According to the story, “A senior GOP aide said the Senate could vote on Boyle during July or after the August recess. The Senate Republican leadership is testing Boyle’s support but does not want a floor vote it cannot win, the aide said.” Meanwhile, the White House doesn’t appear to be fully committed to Boyle, the Hill explains: “The White House also has not responded to requests for information on Boyle’s financial interests from conservative groups seeking to defend the nominee.”

Boyle law clerks urge a vote on Boyle in WSJ

Will Evans — Tue, 20 Jun 2006 00:00:00 -0700

Five of Boyle’s former law clerks write a letter to the Wall Street Journal: “Sen. Bill Frist should proceed promptly with a vote as previously promised, taking the fight to the floor if necessary to rebut the erroneous claims. Otherwise, the appellate confirmation process will spiral downward into the realm of cheap politics and personal attacks.”

Judiciary committee briefings held on Boyle conflicts

Will Evans — Mon, 12 Jun 2006 00:00:00 -0700

Judiciary Committee Chairman Arlen Specter’s staff announces multiple briefings to be held each day throughout the week on Boyle’s conflicts of interest, for all interested Senate staff. The Hill later reported that staffers from about 40 Senate offices met with committee staff.

WSJ and The Hill report on Boyle's chances

Will Evans — Wed, 07 Jun 2006 00:00:00 -0700

A Wall Street Journal editorial addressed Boyle’s chances: “Democrats now say they'll filibuster his nomination. They are distorting a couple of Judge Boyle's civil rights decisions and making conflict-of-interest allegations that add up at worst to minor infractions. But Republicans don't want a fight in an election year over race or ethics. And Judge Boyle's one-time Senate champion -- Jesse Helms -- has long since retired. A controversial nominee without an angel to guide him through today's polarized Senate is in trouble.” Also, The Hill’s Alexander Bolton reports that “White House officials are making a concerted effort to cooperate with outside conservative groups to support and defend President Bush’s nominees to the federal bench, and they are also planning to work more closely with the Senate on confirming the nominees.” According to Bolton, “the Department of Justice is crafting a memo on Boyle’s conduct as a judge.” Sen. Jeff Sessions (R-AL) told The Hill that he met with Boyle and a White House aide “in a meeting he said he assumed was set up by the administration.”

Committee for Justice sends out "talking points" on Boyle

Will Evans — Thu, 01 Jun 2006 00:00:00 -0700

The Committee for Justice circulates talking points minimizing Judge Boyle’s conflicts of interest and comparing them to those of Supreme Court Justices: “Dems Use Alleged Conflict Of Interest Charges Against Circuit Court Nominee Terrence Boyle, Ignore Conflict Of Interest Questions Justices Ruth Bader Ginsburg And Stephen Breyer Faced.” The Hill later reports that the talking points “were written in the signature style of the White House and its ally the Republican National Committee.”