ethics

Bush Judge's Rating Lowered

In a rare move, the American Bar Association revoked its top rating of a Bush judicial nominee last week, after CIR revealed in a Salon.com story his repeated conflicts of interest while on the bench.

The ABA originally gave Judge James H. Payne its highest mark – a unanimous “well qualified” - after he was nominated to the 10th U.S. Circuit Court of Appeals by President Bush last fall. After conducting a special reevaluation, which included a talk with Payne, a large majority of the committee now finds him “qualified,” while a minority voted him “not qualified.”

“We received information that had to do with whether or not he had any conflict issues,” said Stephen Tober, chair of the ABA committee.

The Salon.com story on Jan. 23, "Bush Nominee Broke Law," www.salon.com />showed that Payne, currently chief judge of a federal district court in Oklahoma, had issued more than 100 orders in at least 18 cases that involved corporations in which he reported stock holdings. Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on such cases.

Payne has so far declined to comment on or dispute the original story.

Since the story, the chief judge of the 10th Circuit Court and a member of the Senate Judiciary Committee staff said they plan to look into Payne’s reported violations of federal law. Oklahoma’s senators, meanwhile, have continued to support the nominee.

The ABA issued its revised rating Feb. 21. Because of the ABA committee’s confidentiality rules, Tober said he couldn’t elaborate unless he is called to testify before the Senate Judiciary Committee during Payne’s confirmation hearing. A hearing has not yet been scheduled for Payne, who was nominated in September.

Tober said that while the ABA has revoked and lowered ratings before, “it’s not a common occurrence.” The ABA rates all federal judicial nominees based on their integrity, professional competence and judicial temperament.

“I think that’s unusual and a sign that they have some serious reservations about him,” said Amanda Frost, assistant professor at American University Washington College of Law, who specializes in the federal court system.

“As people start expressing more doubts it could become a problem. It’s sort of a chipping away of his credentials,” Frost said. “It certainly sounds to me like they’re telling the Senate to look at him closely.”

Bench Warfare

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."

Who's Watching the Watchdog? Part I

In part one of a two-part report examining the practices of the Better Business Bureau, associate reporter Richard H.P. Sia questions whether the bureau us hurting the small businesses it is supposed to protect. The report reveals that the nation's network of Better Business Bureaus has been plagued by financial instability and allegations of conflict of interests. This is a CIR-assisted story.

Complaints, Loses spur BBB shakeup

The Better Business Bureau of Greater Maryland Inc. -- the nonprofit association that encourages local businesses to behave ethically -- is being reorganized to address declining membership and allegations that its salesmen used improper pitches to persuade local businesses to become dues-paying members.

Malcolm C. Taylor, a Towson-based accountant and chairman of the BBB's governing board, said yesterday that longtime BBB President Philip Kershner had resigned effective tomorrow. Other personnel changes will follow, Mr. Taylor said.

Mr. Kershner did not return messages asking for comment. Contacted through a co-worker, he referred calls to Mr. Taylor.

The Biofood Battle

Gill Tract is barely noticeable to people out for a stroll on San Pablo Avenue in sleepy Albany. For all they know, the 12-acre urban farm, surrounded by a six-foot chain-link fence, is tended by benevolent agriculture students from UC Berkeley, which administers the plot.

For decades, Gill Tract has been a wellspring of sustainable-farming research, synonymous with Berkeley's organic foods movement and its chief evangelist, Chez Panisse restaurant owner Alice Waters.

This spring, the farm was anticipating a healthy summer growing season. Nasturtiums carpeted the entrance,
leading to pear trees, palms, and cypress pines. A rectangular plot was plowed and ready for corn. But the serenity of a spring day belies the storm that has placed the little tract at the center of the biggest controversy in agriculture today: the battle over genetically modified foods.

As you've no doubt been reading over the past year, genetic engineering involves injecting genes from one plant or animal into another to produce desirable new characteristics. Most famously, researchers implanted a gene from a fish that swims in icy arctic waters into strawberries and tomatoes to help the vulnerable fruits ward off frost.

Last summer. Gill Tract was a focal point of the escalating biofood war. Activists calling themselves the California Croppers trampled 14 rows of corn, claiming the crops had been genetically engineered. "The security of the world's food supply is at stake," declared spokesman Captain Swing. "Giant corporations have set mad scientists loose upon the world, and as responsible citizens and farmers, we have no choice but to stop them."

The activists' vandalism was aimed at Novartis, the Swiss-based agrochemical and biotechnology giant, which produces a portion of the world's genetically modified corn seeds and in 1998 inked a research agreement with UC Berkeley. Today, some agricultural studies at Gill Tract are partly funded by Novartis, thrusting UC Berkeley into the center of another searing debate: Should a public university even be joining forces with a private corporation? Cloaked in his pseudonym, Captain Swing warned: "The Croppers would like to make it clear to Novartis that we will take
similar actions against any future biotech experiments."
In fact, the Gill Tract corn trampled by the California Croppers was not the infamous "Frankencorn," which contains altered genes to battle insects and chemical herbicides. Gill Tract researchers were growing a type of transgenic corn to study cloning. Ironically, they were
conducting such tests so that genetic information could be made available to growers everywhere—"specifically so that this information cannot be patented by corporations," says UC Berkeley graduate student Nick Kaplinsky.
The protest underscores the myths and melodramas that surround the debate. On one side, biotech
advocates maintain they can arrest world hunger, enhance nutrition, and even end many lifethreatening
diseases. Ecologists, meanwhile, insist that companies like Novartis are driven not by
altruism, sound science, or even the health of consumers, but by their own bottom lines.
Will it be genetic engineering or organic farming that shapes the future of agriculture? "The choices
are all right here," says Peter Rosset, executive codirector of Food First/ Institute for Food and
Development Policy, an Oakland nonprofit. "The Bay Area is a leader in both biotechnology and
alternative-food systems. And it's right here at Gill Tract where all these issues—these incredible
global crossroads— are crystallized into one small piece of land."
When Gordon Rausser first took his seat in the ornate confines of UC Berkeley's Giannini Hall as
dean of the College of Natural Resources in 1994, he had to wonder whether there would even be
an agriculture school for him to administer. Welcoming him to his new post was a university
proposal, supported, by a California agribusiness committee, recommending that agriculture studies
be transferred from Berkeley to UC Riverside and UC Davis. The College of Natural Resources
had come under scrutiny during the '80s, due in part to the high-profile activism by faculty
members who helped plan statewide ballot measures to support sustainable farming and local
measures to challenge the use of pesticides.
For over a century, the University of California has been receiving federal grants for agricultural
research centers, or land-grant colleges. The land-grant system was created in the 19th century to
help foster agricultural research that would benefit small, family-owned farms. But by the '90s,
agriculture was dominated by large farms, many of which are owned by industrial corporations. At
the same time, federal and state funds for land-grant colleges were drying up. And agribusiness did
not exactly find its needs being served by a college preaching against the practices of corporate
agriculture.
According to Frederick Buttel, a professor of rural sociology at the University of Wisconsin-
Madison, who has studied agricultural practices at land-grant colleges for an upcoming book,
private industry in the '80s was losing patience with universities across the country. "This was both
a threat and a promise," he says. "If agricultural schools shifted their research focus, industry would
provide the funding."
Another tipping point, says Buttel, was that a growing source of federal funding was available to
agricultural schools from the National Science Foundation and the National Institutes of
Health—provided the colleges concentrated on research in molecular biology and biotechnology.
"In 1994, when things at the college were in disarray, the mission was not clear, as there was a
tendency to go toward environmental research," says Rausser. However, one thing was clear:
"Significant pockets of California agriculture did not support us."
As the biotech industry bloomed in California in the '90s, the savvy Rausser knew its fruits were
waiting to be picked. With federal grants running low, the astute dean shuffled the College of the
Natural Resources and created the Department of Plant and Microbial Biology. By delving into
plant and microbe structure and function—which would yield information to help genetically
engineer plants—the new department would be a perfect complement to the biotech industry. The
reorganization shitted the focus in the College of Natural Resources from agricultural methods that
were what professor of entomology Donald Dahlsten called "environmentally soft solutions" to
biotechnology.
Rausser had another idea. With faculty input from the Department of Plant and Microbial Biology,
he assembled a wish list of resources and conditions and shopped it around to several corporations.
Usually, research agreements between universities and corporations work the opposite way: A
company puts out a research request and asks for proposals from individual researchers. But
Rausser was adamant about finding a corporate partner that would let the university remain in
charge of directing the research.
Of course, Rausser wasn't after just any biotech company. He needed one of the big guys. The
consolidation trend of the '90s was alive and well in the agricultural industry, when corporations
went on a buying binge. Since 1995, the developers of genetically modified seeds, including Dow,
DuPont, Novartis, and Monsanto, have spent $37 billion worldwide to gobble up other seed- and
crop-protection companies. The mergers allowed them to lock up ownership of gene patents.
The private ownership of those patents meant that for university researchers to do any meaningful
work on biotechnology, they would first need to form an agreement with one of the major
companies. "The life sciences were going to control the intellectual property rights to the genomes
of crops," explains Rausser. "If you're talking about corn, then it's pretty well owned by DuPont
and Monsanto. The partnership allowed us to more rapidly and without obstacles be on the frontier
of genetic research."
In November 1998, Rausser landed his big fish, the $20 billion Novartis Corporation, whose
holdings include Gerber baby food and Ovaltine. Along with Monsanto, Novartis is a producer of
Bacillus thuringiensis (Bt) corn, which has been genetically modified with a bacterium to give the
plant the ability to ward off pests. In 1999, Bt corn made up nearly one-third of all corn planted in
the United States.
The deal called for Novartis to fund the Department of Plant and Microbial Biology to the tune of
$25 million for five years. It would maintain two representatives on a five person committee
charged with assessing research proposals and doling out research money; it was given first rights
to negotiate a license on a percentage of inventions.
Was the university now doing the bidding of a private corporation? Rausser vehemently denies it.
"Without this deal, any corporation could come into our college and pick and choose among
projects and negotiate a license," he says. This way, UC Berkeley would stay in charge of the
research,
As 1999 dawned, Rausser was thrilled the university was back in favor with the state's agribusiness.
"Today, because of the Department of Plant and Microbial Biology's work in biotechnology and the
Novartis deal, agriculture in California supports us." He was also delighted UC Berkeley would be
on the leading edge of biofood studies. Genetic research, he says, presents "an opportunity we
should actively pursue. There are huge potential benefits."
As well as anyone, Rausser can reel off the dire statistics of world hunger. The food of over 800
million people does not contain sufficient nutrition, 250 million children are at risk for vitamin A
deficiencies, and 2 billion people are at risk for iron deficiency. To this end, biotech companies are
designing crops with enhanced levels of vitamin A and other nutrients, and crops that carry
vaccines for immunization to diseases.
Researchers are looking into ways to manipulate genes to make the plants themselves immune to
viruses and bacteria and are designing genes to give crops the ability to withstand drought. Part of
the Berkeley being funded by Novartis delves into ways to benefit both farmers and consumers
worldwide, says Susan Jenkins, a research specialist in the Department of Plant and Microbial
Biology.
As for critics of genetically modified food, Rausser dismisses them as Luddites. "Right now in
biotechnology, as it relates to food, we are precisely where the Wright brothers were in the early
1900s. Think what would have happened had we not exposed ourselves to the risks involved back
then. What would have happened to aviation?"
Times have indeed changed in the past century. Our economic livelihood is now driven more by
bytes and genes than ploughs and harvesters. But at Berkeley, where the school board has declared
its cafeteria to be free of genetically modified foods, Rauser's sanguine view of biotech was
embraced about as warmly as a Big Mac.
Leading the opposition is UC Berkeley ecologist and associate professor of environmental sciences
Miguel Altieri. Agrochemical companies, he says, "instead of expanding more, are saying, 'Let's
buy scientists in universities to do research for u.' It's a great deal for Novartis at $25 million for 5
years – look at all the basic research they get."
A shock of jet-black hair with hints of gray caps Altieri's furrowed brow. He bristles at the
emergence of biotechnology-related studies on campus. The new focus, he says, is turning research
priorities from areas of inquiry that don't have tangible benefit for industry toward research that
does.
"We're doing ecology, and microbiologists are doing extreme science where they can attract
money," Altieri says. "This creates an apartheid in the department where only the ones who bring
in money can stay. What about the ones who don't want to or can't bring in research money? How
can we survive?"
Altieri has managed to survive for 20 years. But in the wake of his opposition to the Novartis deal
he was forced to move from his spacious digs in Hilgard Hall to a smaller space. By putting up a
fight, he would up in Mulford Hall, where he has adequate space, even if it is in a building slated
for seismic updating. "I'm in the corner, where I'm physically isolated," he says, "Maybe that's
indicative of the kind of isolation my studies have given me."
Altieri's studies have taken him around the world to work with farmers in developing countries.
"When you talk about biological control," says Altieri, referring to his field of study, "inevitably
you talk about the need to decrease farm size, the need to do more without chemicals, and
inevitable you confront the interests of big agriculture."
Biological control employs practices such as putting marigolds into a garden to ward off nematodes
or releasing ladybugs to fight off aphids – processed where a natural enemy of a pest is introduced
into a local environment and allowed to become a part of the ecosystem. The result is that nature
takes care of the problem; there is no product to buy or sell. "I put flowers by crops – who's going
to patent that?" asks Altieri.
Sustainable farmers dictate the need for small farmers to cooperate among themselves so they can
thrive off their lands together. This includes sharing seeds and saving them from one growing
season to the next. It's a practice, Altieri says, that can cut against the grain of major seed
companies, which profit by selling new genetically modified seeds each year. In 1996, farmers
around the world planted a total of 4.3 million acres of genetically modified crops. By the end of
1998, they were planting 69.5 million acres of the stuff, and seed sale climbed to an estimated $1.3
billion.
Yet, genetically engineered crops, says Altieri, "are creating novel organisms that would not result
form evolution. We have no evolutionary experience with the organisms they are creating."
Because these products do not exist in nature, they have the potential to harm ecosystems in
unknown ways. When a May 1999 report from Cornell University stated that Bt corn pollen killed
the larvae of monarch butterflies, it became the lightning rod in the debate over the safety of
genetically modified crops. (The report gave activists a powerful symbol. At a biofood conference
in Oakland last December, in a scene repeated around the country, protesters dressed up as
monarch butterflies and corn stalks. As scientists and executives walked to the conference, they
had to dodge woozy butterflies spiraling around the corn and collapsing on the sidewalk.)
Altieri is also concerned that federal regulations allow agrochemical companies to police
themselves and determine whether or not they can bring a crop to market. So far, the industry has
been reluctant to address public concerns about the safety of genetically modified foods by labeling
them.
Currently, consumers have no idea whether the foods on supermarket shelves are at least partially
derived from these crops. This includes everything from corn syrup in soft drinks to breakfast
cereals to baby foods. According to the Grocery Manufacturers of America, about 70 percent of
food sold in grocery stores have been produced with genetically modified crops.
Because the agrochemical companies test only for the proteins and compounds they know cause
allergies, some new compounds go undetected. A couple of common food allergies are chalked up
to certain proteins in sesame seeds and nut oils. The smallest amount of these proteins can trigger
an allergy. Researchers at the University of Nebraska found that people allergic to nuts who ate
genetically altered soybeans containing a gene from a Brazil nut experienced an allergic
reaction—the same kind they would have had if they'd eaten the Brazil nut itself.
Genetically modified foods, says Rosset, codirector of Food First, represent "the largest ecological
and human health experiment in history. The U.S. public and environment are the guinea pigs right
now."
Recently, such statements have spooked the food industry. While the likes of Frito-Lay,
McDonald's, and Gerber insist genetically modified crops are safe, the companies claim they are
attempting to limit the use of GM corn and potatoes — although this may be more spindoctoring
than reality. (The New York Times recently reported that McDonald's boils its fries in oil made
from genetically modified corn and soybeans.)
Still, grassroots opposition has galvanized a cultural shift in the view of genetically modified foods'
safety—a shift that social activists like Rosset are poised to exploit.
With his closely cropped beard and mustache, Rosset's tidy appearance and fit physique stem from
a personal discipline that he applies to his work. As part of Food First, Rosset cofounded the Bay
Area Coalition for Urban Agriculture. Since 1996, the coalition of more than 40 community groups
has been agitating for change at UC Berkeley and Gill Tract.
In 1978, fresh out of a master's program in entomology at the University of London, Rosset landed
a research job with a USDA biological-control lab at Gill Tract. Already, the tract had become
known the world over for developing organic alternatives to pesticides. "I came to love Gill Tract
and all it stood for," Rosset says.
Where agrochemical companies see genetically engineered crops as the solution to world hunger,
Rosset sees a different story. In his view, malnutrition results from a lack of diversity in crops and a
lack of variety in diets. Urban and sustainable agriculture get around these problems, he says, by
making farms smaller and developing a wider range of crops. "By having the people who need it
most produce it themselves, you have a positive bias in distribution, instead of a negative one from
large-scale corporate agriculture."
In years past, UC Berkeley's College of Natural Resources was dismissive of the coalition. But
Rosset is now optimistic. Under pressure from the community and from letters sent to the
chancellor's office by elected officials, among them East Bay Congresswoman Barbara Lee, the
university is willing to negotiate in good faith with the coalition regarding urban agricultural
studies at the tract.
Winds are shifting inside the university, too. Rausser recently resigned, citing a promise he made to
his family to spend only five years in his post. Into his shoes steps Richard Malkin, who was one of
only two researchers within the Department of Plant and Microbial Biology not to sign the Novartis
agreement. Malkin, who chooses his words carefully, says he did not endorse the Novartis pact
because he didn't think more funding was needed for his own research programs. He says he was
also concerned that receiving money from Novartis would up the scales from teaching to research,
that it "would have some effect on the time and willingness of faculty to participate in teaching
programs."
Malkin isn't troubled by the university's engagement in biotech research. But he is open to research
into the safety of genetically modified crops. "I don't think there's any indication they're not safe,"
he says. "But there's not been a lot of examination in strictly scientific settings to show this."
Prior to the biotech '90s, Altieri and company held offices and labs at Gill Tract. They would walk
out to the planting fields or linger in the tract s expansive greenhouses. The place buzzed with
activity, including a daily volleyball game in the parking lot.
Today, the tract appears to be all business. Corn—a small percentage of which is grown from
modified seeds, including genes from Bt—is sprouting again. And the university has pledged to
step up security patrols in the wake of last year's stompings. According to
Altieri, though, researchers growing , corn want separately fenced plots that security personnel can
view through television monitors. Has the university taken such drastic measures? "I'm reluctant to
talk about that," says Sharon Fleming, who administers the Gill Tract. "I'm concerned it will violate
security."
Still, despite all the secrecy and intrigue, Gill Tract appears to embody the very biological diversity
that Altieri and Rosset advocate. The tract hosts 30 researchers conducting experiments on a
number of crops. Altieri, in particular, is studying natural methods of pest control by growing a
variety of crops together in a small area.
Rosset, in fact, sees a cultural wind shifting in favor of sustainable agriculture. He says the recent
failure of the World Trade Organization negotiations in Seattle put the Clinton
administration—which had promised to work the WTO to broaden the market for genetically
modified foods— under a political microscope. A signal that the biotech giants themselves were
backing off from genetically modified foods came in the three weeks after the Seattle conference.
Novartis spun off its Crop Protection and Seeds unit to AstraZeneca and Monsanto merged with
Pharmacia & Upjohn, divesting themselves of agricultural ventures suffering shortfalls in earnings.
But the signals are mixed. This spring, in response to mounting concern over the safety of
genetically modified foods, Clinton announced changes in the way such foods would be
tested—although he maintained that labeling would remain voluntary. And in health-conscious
California, provisions in a bill that would have required labeling of genetically modified foods
failed in the latest legislative session.
Despite the setbacks, Rosset, an eternal optimist, sees the continuing openness to sustainable
farming at Gill Tract as a sign that the debate over genetically modified foods has not been won by
the agrochemical companies. Of course, as an activist, Rosset knows that, pitted against the
economic force of the biotech industry, he's in the battle for the long haul. "We're like a pit bull that
grabs hold and doesn't let go," he says. "We're not going to let go until we get what the community
needs."

Blowback in Genetic Engineering

The word “science” evokes a world of men and women driven by curiosity to explore the cosmos, the magic of chemical interactions, the decoding of the genetic combinations of a cell. Following trails of suspicion and experimentation, scientists have over centuries aimed to unlock the mysteries of life on earth.

But “science,” for the last century, has also evolved into a multibillion-dollar business. Today, pharmaceutical companies, agricultural biotechnology firms, weapons labs, semiconductor producers and countless other research and technology–based businesses are among the key players in a global industry that plays a critical role in spurring scientific inquiry and in fueling American economic growth.

The centrality of science and technology to the U.S. economy was outlined in 1945, when Vannevar Bush, director of the Office of Scientific Research and Development for President Franklin D. Roosevelt, authored a report proposing the establishment of a national science policy to deliver expanded government support for science in the post–World War II era. That report, titled Science: The Endless Frontier, set the template for an ever more formalized relationship between publicly supported scientific innovators and the private sector. “New manufacturing industries can be started and many older industries greatly strengthened and expanded if we continue to study nature’s laws and apply new knowledge to practical purposes,” stated the Bush report, which recommended large increases in government support for basic scientific research as a means of fueling innovation in the postwar economy.

But Bush was, unwittingly perhaps, setting into motion a science policy that has repeatedly neglected to address key questions linked to the long-term implications of scientific innovation and to the actual real-time beneficiaries of those innovations. What, for example, was the primary social good to be addressed in fueling scientific innovation? Who were the primary winners? And who or what were the possible losers?

On the one hand, Bush’s report made an important contribution to spurring basic research and demonstrating the importance of scientific advance to social and economic life. But half a century later, we are also now living with Bush’s legacy in the form of the environmental, ethical, and health-related impacts of what were once considered unequivocally “positive” scientific innovations.

Under the mounting pressure of Bush’s unanswered questions, the old Enlightenment ideal of science pursuing knowledge for the large-scale benefits of humanity is starting to crack. While the bounty of scientific innovation has delivered great benefits, we are now living in a time in which the implicit assumption that scientific advances equal advances for the common good is shaken by such new developments as spliced frogs and sheep, genetically engineered (GE) plants designed to produce pesticides, and manufactured synthetics that suggest a sort of time-release chemical warfare against ourselves. Popular unease is coming to a head in an era in which “science,” that noun used to describe a multifarious community of inquirers, is coming increasingly to manipulate the firmament of life itself.

The implications of the blurring between the pursuit of knowledge and the pursuit of profit are exemplified in the ongoing controversy over GE food crops. The starting point of that research was a simple and profound curiosity: the desire to identify how genetic codes are translated into actual characteristics in a plant. That was in 1982, when scientists at public institutions and private companies such as Monsanto began their quest to unravel the clues embedded in the double helix. When in 1983 three researchers at Cornell University used a shotgun to blast into an onion a tungsten-coated “bullet” containing new DNA, the curtain was opened onto an entirely new arena for genetic research.

In the 1980s, I spent a good deal of time reporting on the toxic effects of agricultural chemicals (for the book Circle of Poison, as well as for numerous articles on the environmental and health impacts of pesticides). At the time, the idea of genetically engineered crops, a gleam in the eye of some avant-garde researchers, was presented by many—including those in the environmental as well as scientific community—as a potentially “green” alternative to chemical-dependent agriculture. The impetus for the research was framed in a public-spirited way: Monsanto itself began promoting its increasingly formidable research and marketing capabilities as a step toward “sustainable” agricultural development strategies in both developed and developing countries, suggesting that GE crops could be the answer to the food productivity problems in Africa and elsewhere.

Two decades later, serious questions about the long-term impacts of ag-biotech have become a source of growing friction between the United States and the rest of the world. U.S. policies encouraging the proliferation of genetically modified organisms (GMOs) in the food supply have given rise to a major trade conflict between the United States and Europe, and created an embarrassing standoff in which U.S. donations of food are actually being refused because of fears of what may or may not be contained in those genetically altered crops. The journey of GE foods—once considered an environmental alternative, now a source of fear—into the heart of the American food system illustrates the importance of the questions that Bush and subsequent generations of scientific policy makers failed to ask.

Today no one uses a shotgun to do the work, but the principle remains the same: customized DNA insertions in order to obtain customized characteristics. First it was onions; then corn, soybeans, canola, wheat, tomatoes, and other food crops began to feature genetically engineered components. Walk through your local supermarket, and you’ll find them in breakfast cereals, canned drinks, and processed foods of every sort. One-third of the corn and three-quarters of the soybeans, America’s most economically significant food crops, contain genetically engineered components. GE research, begun with grand hopes of saving the world’s food supply from demographic, political, and environmental catastrophe, has in fact been oriented not toward the conditions of Africa, Asia, or Latin America, where such problems are acute, but toward the developed nations’ industrial-scale agriculture. Three out of every four patents issued over the past ten years for genetically modified crops have been issued to just five multinational companies—Monsanto, Dow, DuPont, Syngenta, and Aventis. And while that research has been speeding into ever-newer varieties, funds for research at public institutions responsible for green revolution initiatives in developing countries, such as the International Maize and Wheat Improvement Center (CIMMYT) in Mexico, are drying up as public and private monies are devoted increasingly to biotech solutions to agricultural problems.

In the summer of 2002, I found myself driving a pickup truck through the fields of Frank McLain, an Iowa corn and soybean farmer. I had met Frank and his father, Fred, in 1982, while reporting a story about the consolidation of the American seed industry. At the time, the number of independent players in the industry was undergoing rapid decline as regionally based seed companies were being bought out by large multinational chemical and pharmaceutical companies, which subsequently emerged as the key drivers behind genetic engineering research.

Now I was paying the McLains a visit once again, this time in the company of a film crew for the PBS newsmagazine program NOW with Bill Moyers, for a story on the impact of the genetic revolution on America’s farmers. Here in the heart of America’s breadbasket is where that revolution is being wrought.

McLain was growing 1,500 acres of corn and soybeans. His “Bt corn” contains an inserted Bt gene that delivers a toxic insecticide that kills a corn pest, the European corn borer; his Roundup Ready soybeans have been engineered to resist the application of Roundup herbicide, so that the herbicide kills only unwanted weeds and not the soybean plants it is designed to protect. For McLain, the GE crops have delivered some considerable short-term benefits: he applies half the amount of pesticides to his corn as he used to, and with the Roundup Ready soybeans he doesn’t have to go into his fields and manually remove the weeds the way he and his father used to, which in turn protects his soil from destructive overtilling.

McLain’s experience with genetic engineering illustrates both the allure and the potential dangers of the new technology. One-third of the cornfields in Iowa are planted with Bt corn seeds, and almost all of the soybeans are planted with Roundup Ready seeds. For many American farmers, GE crops offer a level of predictability in a risky business that every season can rise or fall with a few degrees of Fahrenheit.

McLain expressed to me his incomprehension about why these crops, which have aided him in his daily work, have become so controversial. “We’re using a technology,” he said, “that’s been given us to make our life easier and to raise better crops.”

A half-hour’s drive from McLain’s farm, in the university town of Ames, I encountered Fred Kirschenman, director of the Leopold Center.

Sponsored by a state tax on pesticide sales, the center is one of the foremost institutes in the United States for research on sustainable agriculture. Kirschenman acknowledged that there have been short-term benefits from the technology of genetic engineering, but he takes the long-term view, and sees the controversies over GE food technology as arising from the policies prompted by that fateful report produced by Vannevar Bush at the close of World War II.

“In agriculture,” Kirschenman commented, “we haven’t been asking the right questions at least since 1945. What that policy statement said was that we need to use science to dramatically improve our technological capabilities. We were very successful in using technology to win the war; therefore we ought now to apply that technology to increase our crop production. Since then, we have geared up our whole scientific agenda to solve problems with technological innovation.

“But there’s a larger issue here. Over the past fifty years, little attention has been paid to ecological issues, the interactions between plants and organisms. We have been rapidly reengineering organisms without asking what their ecological niche is. Why not ask: How will this change the physiology of the plant? How will it affect the organisms around it? And then there’s the question, Can we ever back out of it? These are self-replicating organisms. Once they’re in, you can’t get them out again. All we ask now is ‘Does it work?’”

The answers to Kirschenman’s questions are coming in rapidly from research institutions around the world, and are providinga sobering picture of the impact of the technology years after its massive introduction into the foodsystem. Reports from scientists in Switzerland and elsewhere indicate that, in fact, there are profound impacts on the physiology of GE corn, primarily in toughening the lignin, or stems, of the plants. While thereis little evidence suggesting acute harm to human health from GE crops, there are indications that GE foods may not contain as much nutrition as traditionally bred crops.

More ominously, toxins now bred into Bt corn to kill off the corn borer are leaving residues in the soil, having toxic effects on beneficial insects and, after runoff into waterways, on marine life. In some parts of the United States, weeds have developed resistance to Roundup herbicide, and the corn borer is showing signs of evolving resistance to the Bt toxin. And the self-replicating lab-produced Bt variety of corn is, indeed, replicating itself— in places where it is not wanted. Organic farmers across the country are being denied organic certification—representing millions of dollars in lost sales—due to the discovery of genetically modified material in their corn, delivered to their organic fields by windblown corn pollen from neighboring farms.

What those emerging problems suggest, and evidence of such problems is mounting from around the world, is the legacy of policies set in motion back in 1945. Pursuing the mysteries of the genetic makeup of the plant cell (foreshadowing by several years the Human Genome Project), the age-old scientific dynamic went to work: curiosity—hypothesis experimentation. From there evolved a greater understanding of how different genetic elements of the plant genome play a role in expressing certain characteristics. At any stage along this continuum, the government could have intruded into the process by requiring assessments about the long-term environmental safety and health implications of what amounts to a profound shift in the way new plant varieties are created.

That did not happen. Rather, private companies, utilizing much of the basic research conducted in public research facilities, took the lead in developing the technology, with few brakes put on their work. Throughout the 1990s, the U.S. Department of Agriculture (USDA) appropriated just 1 percent of its annual agricultural biotechnology research budget to risk assessments. (In 2002, Ohio congressman Dennis Kucinich succeeded in upping that to 2 percent, a still-minuscule figure that itself was a compromise from the 10 percent originally proposed by Kucinich, and that was approved despite the resistance of lobbyists from the agbiotech industry). Overseas, the USDA and the U.S. Agency for International Development have become ever more aggressive in promoting the use of ag-biotech to foreign governments.

Beginning with the government’s support in the earliest days of ag-biotech research, and on into the present day, the parallel evolution of private industry’s and the government’s commitment to GE technology was critical to the introduction of GMOs on a mass scale. The government sent its most powerful signal of compliance with the onrushing train of GE research in mid-1992 when the USDA, under heavy industry pressure, made the determination that GE crops were the “substantial equivalent” of traditionally bred crops. This designation—first articulated in a speech on U.S. technology policy by Vice President Dan Quayle—helped ag-biotech producers avoid any significant federal or regulatory oversight over a technology that essentially introduces entirely new living organisms into the ecosystem and the food chain. No single regulatory agency now has the power to monitor on a sustained basis the growing of GE food crops.

At the same time, while some GE initiatives do suggest the technology’s potential in aiding the development of agriculture in economically and environmentally stressed regions of the globe, the reality is that most of the new GE varieties are tailored not for people living in harsh tropical or arid environments, or for lands undergoing desertification or other stresses, but for the temperate conditions of the American and other industrial-scale agriculture systems, and for lands that have already reached a point of high efficiency in food production. But it is here where the true profits lie for the companies behind the research. By not asking the right questions—not submitting the new technology to what Kirschenman describes as “ecological screening”—we end up with a technology that is now being tested in a massive real-time experiment on the environment of America’s farmlands and on living human subjects: American consumers.

Charles Benbrook, an independent agricultural economist and former director of the National Academy of Sciences Board on Agriculture, has been studying the long-term environmental impacts of genetically engineered food crops. He traces the rapid rollout of genetic technology into the food system to the powerful momentum generated by the alliance between government and industry:

"The reality is, when you have companies and technologies that are so powerful economically, the country can’t afford to have them fail. And that’s a problem, when it becomes too costly for the government to admit that there might actually be a problem with something. . . . Corn and soybeans are the backbone of the whole U.S. food system. If there were any problem in either of those crops, it’s fair to say the government’s going to do everything in its power to try to convince people that everything imaginable is being done to address the problem, that it’s not a serious threat, and that people should not lose confidence in the safety of the U.S. food supply."

What the U.S. government didn’t plan for has come to pass anyway. The questions that Vannevar Bush—and generations of scientific policy makers since—did not address have nevertheless been reverberating through the global channels of agricultural trade. While on the trail of GE corn from Iowa to Mexico, I visited the town of Capulalpan, deep in the Sierra Norte mountains of the Mexican state of Oaxaca. Villagers who had farmed hillside plots for generations discovered that elements of the Bt gene had found their way into their corn, stoking fears in the village and around the world that genetic engineering was out of control.

Since the commercial introduction of GE technology, the piñata of American agriculture has sent transgenic candies from one end of the earth to the other. But the world’s food consumers are signaling that they do not want what American farmers are producing:

Mexico, 2001–2002: Fears grow throughout the country after it is discovered that GE corn has mixed with indigenous corn varieties in the state of Oaxaca, despite the fact that Mexico has banned the planting, though not consumption, of GE seeds.

New Zealand, 2002: The incumbent government’s position on GMO technology becomes a major issue in that country’s national election.

Zambia, 2002: Fearful of contaminating its agriculture with GMOs, the government refuses to accept U.S. offers to donate 20 million tons of corn to help the country deal with a food crisis threatening millions with starvation.

Europe, 2002–2003: The European Union (EU) warns the United States that its refusal to label food exports grown with GE varieties threatens future imports to EU member countries. The United States threatens to bring suit in the World Trade Organization, which could lead to a major trade and political battle over GMO technology between the world’s two largest trading partners.

Australia, January 2003: A 48,000-ton shipment of U.S. corn is refused entry at the dock in Brisbane after health department officials determine that the grain must be crushed and steamed to destroy any lingering GE remnants in food pellets intended for chickens.

India, January 2003: The government refuses to permit the importation of American soybeans and corn due to fears that it might contain genetically modified ingredients hazardous to human health.

Japan, 2003: Japanese international merchants begin turning away U.S. corn imports en masse after reports that previous American shipments contained traces of StarLink, a gene-spliced corn that has never been approved for human consumption in the United States or any other country.

At the root of this resistance lie deep-seated fears about the long-term impacts of genetically modified organisms, GMOs, on the environment and on human health; and a wariness over a technology that seems entwined with a corporate-driven agriculture threatening family farmers and treasured biological resources. The resistance also comes at a time when many consumers—in Europe particularly—lack faith in their government’s regulatory authority to watch out for the public interest after the debacle of mad-cow disease and other food-related scandals. All of these concerns suggest a dwindling of the public’s trust in scientific authority.

Twenty-seven countries, including the fifteen nations of the European Union, have imposed either bans or severe restrictions on the import or growing of genetically modified food. For developing countries, concern is also focused around their future ability to sell agricultural products to the many developed nations— most prominently Europe and Japan—that have instituted strict labeling requirements. Thus, one of the unanticipated consequences of globalization has been illuminated through the ongoing controversy over GMOs: the emergence of new channels of global trade have led to the evolution of new levers of power over the products that are traded. Brazil, Mexico, and other countries, for example, face conflicting pressures in their policy decisions on GMOs: to accede to U.S. demands to accept the new products, or retain their restrictions in order to preserve trading relations with Europe and other trading partners skeptical of GMOs.

The United States now finds itself on both ends of the boomerang, as the repercussions of international resistance to GE technology take a severe toll in the American farm belt. To a great extent, the questions prompted by GMOs that have been left unanswered in this country—or at least within this country’s official regulatory structure—are being answered elsewhere. The American Corn Growers Association estimates that U.S. farmers lost nearly a billion dollars’ worth of export sales to Europe and Japan between 1997 and 2002 due to restrictions on genetically modified food imports imposed by Europe, Japan, and other world buyers. Those losses have contributed to driving thousands of American farmers out of business. U.S. food exports, once the backbone of the American farm economy, are increasingly seen as tainted goods in international markets.

It is the rest of the world that is now forcing the United States to pay attention to the long-term consequences of genetic engineering —a sharp twist of agricultural blowback, in which policies decided upon early on in the research process are coming back to haunt us.
Michael Crow, former executive vice provost of Columbia University and currently president of Arizona State University, says an unwillingness to ask the right questions has been the central flaw of U.S. science policy ever since the Bush report. We need to analyze scientific advances through a new prism, Crow says: “There is no policy mechanism at this time which engages the question, What is the purpose of this or that inquiry? If you say, for example, that the aim of science is to more equitably distribute a higher quality of life, that in itself would change the nature of science. That would be a new means of measuring success. It would no longer be enough to say that you have helped unravel another aspect of nature and the universe.”

Having asked the right questions from the outset might have helped the United States avoid a situation in which its farmers are losing business, its consumers are participating unwittingly in an experiment of unknown consequences, and the government is continuing to promote a technology being actively challenged by governments and individuals around the world.

Bush Nominee Appears to Violate Conflict of Interest Rules

A judge nominated by President Bush to one of the highest courts in the nation apparently violated federal law repeatedly while serving on the federal bench. Judge James H. Payne, 64, who was nominated by Bush in late September to join the 10th U.S. Circuit Court of Appeals, based in Denver, issued more than 100 orders in at least 18 cases that involved corporations in which he owned stock, a review of court and financial records shows.

Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on cases involving companies in which they own stock -- no matter how small their holdings -- in order to uphold the integrity of the judicial system. (Judges' financial filings typically don't differentiate ownership between the judge and immediate family members.) The clear-cut, objective standard aims to prevent even the appearance that a judge may be taking into consideration his or her personal financial interests.

Payne's financial filings show holdings of up to $100,000 in SBC Communications stock, up to $50,000 in Wal-Mart stock and up to $15,000 in Pfizer stock, among others, while he presided over lawsuits involving the companies or their subsidiaries. In fact, it appears that since he was appointed by Bush in 2001 as a federal district judge in Oklahoma, Payne has been sitting inappropriately on at least one case at any given moment for nearly his entire federal judgeship.

Last fall, Payne's nomination to the 10th Circuit got little public attention while the media focused on the president's Supreme Court nominations. But Chief Justice John Roberts and current nominee Samuel Alito have tripped over the conflict of interest issue as well. Roberts, who holds an array of blue chip stocks and has unprecedented corporate ties for a sitting Supreme Court justice, has already recused himself from numerous cases and admitted a mistake in not recusing himself earlier from another. Alito was grilled in Senate hearings this month about why in one instance he didn't follow through on a pledge to recuse himself from any case involving the mutual fund company Vanguard, in which he held investments.

Payne refused to answer repeated requests by Salon for comment regarding conflicts of interest in the cases over which he presided. When reached by phone for comment on Dec. 20, Payne said, "I do not have time ... I can't do it," before abruptly hanging up. He did not respond to a subsequent call, or to a follow-up letter delivered to his office on Dec. 22, detailing the problematic cases and asking for an explanation.

Praised for his integrity by a number of Oklahoma lawyers, Payne did eventually recuse himself in some cases and kept himself off others from the start. In the cases in which he didn't recuse himself, most of his actions were routine and procedural. Most of the cases were settled, rather than going to trial.

But informed of Payne's reported stock holdings, plaintiffs in some of the cases say that the judge may well have been swayed by those holdings. Whether he was or not, legal experts say he should have never presided over the lawsuits.

"If I was suing Wal-Mart and I knew the judge held stock in Wal-Mart, I'd be concerned about that," said professor Leslie W. Abramson, a legal ethics expert at the University of Louisville's law school, after reviewing Payne's cases. While there is no proof of malfeasance on Payne's part, Abramson says, the letter of the law is clear on judicial conflict of interest -- and Payne's conduct, he says, leaves the impression that Payne has run his court in a "sloppy" fashion. "He took an oath to follow the law. The judge is supposed to recognize these things himself. If he owned the stock, he shouldn't have been sitting on the case. That to me is a clear call," Abramson said. "I think it speaks to whether a judge has been doing his job responsibly and is likely to do his job responsibly in the future."

"There's no wriggle room here," says professor Stephen Gillers, a scholar of legal ethics at the New York University School of Law. "It's not just an ethics rule, it's a congressional statute -- a law." Even if he doesn't make any orders during the proceedings, he can't be the judge on such a case, Gillers says. "He's disqualified, period."

Linda Chambers, a resident of Muskogee, Okla., says she certainly wouldn't have wanted to go before a judge who owned stock in Pfizer when she sued the pharmaceutical giant for the death of her mother. Chambers' case was one of thousands of lawsuits provoked by the diabetes drug Rezulin, which was withdrawn from the market after being linked to liver damage and deaths. Chambers' mother, Margaret Owens, died at age 65 after liver and kidney failure while taking Rezulin. Chambers' case happened to go before Payne in 2002 and again in 2003, when he reported holdings of up to $15,000 in Pfizer stock. The lawsuit later moved to another court, bundled with similar suits, and was settled. Chambers' attorney, Tony Edwards, said Payne made no significant decisions in the case -- but Chambers said she would have asked for a different judge if she had known of his conflict of interest at the time.

"Sounds like the judge is deciding this case on his best interest also," said Chambers. "I wanted a judge that was impartial. That's what I thought the judges are supposed to be."

Payne's track record illuminates how conflict-ridden cases can slide through the cracks of a system that relies primarily on judges to regulate themselves. The financial disclosure forms that Payne signs and submits each year show a consistent core group of stocks year after year, including those in his most recent filing last September. Since 1999 (as far back as his filings are publicly available), court records show Payne participated in cases involving SBC, Tricon Global Restaurants, Pfizer, Williams Cos. and Wal-Mart while reporting stock holdings in those companies. Some of the lawsuits explicitly name the corporations, while others name subsidiaries, like Taco Bell and KFC (owned by Tricon) or Williams Oil Gathering (owned by the Williams natural-gas giant).

In the wake of the Watergate scandal, Congress passed a law in 1974 during an era of reform that made the rule for recusals unequivocal: Judges should monitor their finances and must disqualify themselves if they, their spouses or their children have a financial interest in the case -- "however small."

Enforcing the law is another matter.

Payne, for example, apparently broke the rules several times in 1999 as a magistrate judge -- yet the Senate confirmed Payne unanimously to become a district judge in 2001, without any mention of the issue.

Judges must fill out financial disclosure reports every year, identifying potential conflicts like stocks. But the filings are kept in an administrative office of the court system in Washington, and if anyone wants to see them, the judge is notified exactly who is asking. This requirement could intimidate lawyers who don't want a judge to find out they are snooping.

Tulsa lawyer Jeff Martin sued Tricon Global Restaurants on behalf of a former KFC restaurant manager who claimed he was owed disability benefits, a case that went before Payne in 2002. Martin says the judge didn't play a significant role in the case, which ended up being settled. But Martin had no idea that Payne's reported stock holdings included up to $50,000 in Tricon (now called Yum Brands). Martin says that if he had known, he would have informed his client -- but probably wouldn't have challenged the judge over it. "I'm not a greatly experienced, big-time lawyer where I think I can push judges around," he said. "I probably would have left it at [Payne's] discretion."

In December 2005 the American Bar Association gave Payne a unanimous "well qualified" rating, its highest mark. The ABA rating committee evaluates a nominee's integrity and reputation, but its guidelines don't say whether it reviews a judge's cases for conflicts of interest. The committee chair declined to comment further.

Payne's Senate confirmation hearing has not yet been scheduled. He currently presides as chief of the U.S. District Court in Muskogee, Okla.; if confirmed to the 10th Circuit, Payne would serve on the court of last resort (except for those relatively few cases that make it to the Supreme Court) in a region covering Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

Senate Judiciary Committee staffers perform a thorough screening of judicial nominees, but don't always review every case a nominee ever sat on, according to Tracy Schmaler, a spokesperson for the ranking committee Democrat, Sen. Patrick Leahy. Finding possible conflicts among hundreds of lawsuits can require a lengthy, exhaustive comparison of a judge's financial interests to all of his cases.

Most district courts now have computer programs that can monitor a judge's caseload for conflicts. But it's up to the judge whether to plug in financial information and use the system. A few federal courts have pioneered reforms: The Northern District of Iowa went so far as to disclose judges' financial interests on the Internet and to require parties in a lawsuit to file a list of all related financial interests. The clerk's office then looks over a judge's cases, and if it identifies a conflict, it automatically reassigns the case before the judge even sees it.

But neither of the clerk's offices in the Northern or Eastern District of Oklahoma, where Payne presides, gets involved with monitoring a judge's conflicts.

University of Louisville's Abramson argues that all judges should be required to use the computer system, and that every clerk of the court should reassign cases with conflicts before they reach the judge's chambers. "The integrity of the process is on the line," he said, pointing out a "systemic failure" that goes beyond Payne. "The U.S. Supreme Court has said that the appearance of impartiality is as important as the fact itself of impartiality."

And yet, in Oklahoma, some lawyers don't see it that way.

Harold Witcher, now retired from practice, helped bring a case against Southwestern Bell Telephone, among others, while Payne reported stock holdings in parent company SBC (now renamed AT&T). Payne issued a couple dozen orders over five months before recusing himself in March 2002. Moreover, Southwestern Bell and other defendants were represented by fellow members of Payne's church, where Payne sits on the board.

Though federal statute requires a judge to recuse himself when "his impartiality might reasonably be questioned," the circumstances surrounding Payne in that case didn't trouble Witcher. "That Judge Payne, I tell you -- he calls it like he sees it. He doesn't care who's sitting where."

One of Witcher's clients, however, said she didn't think Payne should have presided.

"If he is invested in SBC, he's going to rule in favor of SBC and not the ordinary people," said Kathy Lamon, 52, who sued the company and others because of high phone bills charged to families of prison inmates. "I would think it would be a conflict of his interest to be seated on a case like that."

Witcher said he vaguely remembered that Payne mentioned the stock conflict -- and then proceeded with the case because the attorneys didn't object. Oklahoma City lawyer Carrie Hoisington, who was involved in a separate case over which Payne presided, recounted a similar scenario in which Payne may have raised the issue and the case proceeded nonetheless.

Professor Steven Lubet, a legal ethics authority at the Northwestern University School of Law, argues that Payne is guilty only of careless mistakes that are not particularly meaningful "in terms of assessing someone's career or someone's integrity."

Other experts say Payne is clearly in the wrong, regardless of intention. "It doesn't matter whether his rulings were mundane or major, and it doesn't matter that the attorneys agree -- this is a conflict that's not waiveable," said Gillers of NYU. "Maybe the judge just didn't realize that. But he's the judge –- he should read the statutes."

The law does not include a specific penalty for violations, but judges can be censured by a committee of colleagues or, in extreme circumstances, impeached and removed from the judiciary by Congress.

Curiously, Payne recused himself from many cases that intersected with his reported stock holdings, only to later sit on cases concerning the same companies. In March 2002, for example, he suddenly jumped off several lawsuits involving SBC and its subsidiaries after issuing numerous orders. Court records show he cited his SBC stock ownership as the reason in one case; the suit against Cingular Wireless also named SBC, which owns roughly 60 percent of Cingular. But in 2004, Payne presided over another case against Cingular -- and received yet another Cingular case last spring. After being contacted for this story, and without the prompting of attorneys working on the case, Payne recused himself Jan. 3.

"I have absolute complete faith in him as a judge," said David Blades, an attorney who brought the recent case against Cingular. "If he had come and said to me, 'I own stock in Cingular,' I would say, 'So what?'"

But Abramson warns against participating in even the most routine procedures, because it's impossible to predict the twists and turns of a case. In Payne's situation, the various settlement conferences over which he presided could've been particularly problematic: Judges can act as "some of the greatest arm-twisters in the world" in these conferences, Abramson said, actively pushing for resolution of the case rather than having it go to trial.

As a nominee for the federal bench in both 2001 and 2005, Payne did in fact pledge to the U.S. Senate to adhere to conflict-of-interest rules. "In general, I plan to comply with Canon 3 Code of Judicial Conduct and the provisions of 28 U.S.C. 455 concerning disqualification of United States District Judge or United States Magistrate Judge," he wrote in a 2001 questionnaire.

But apparently his willingness to follow through on recusing himself was a different matter. "If it happened routinely," said Gillers of NYU, "then that shows a lack of awareness of his professional responsibilities that I think warrants an explanation."

Bush Judge Under Ethics Cloud

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

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

www.muckraker.org pg_one_investigation-1232--0.html?>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.






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