President Bush

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.

During the 2000 presidential campaign, George W. Bush offered clues as to how he would deal with the environment. In his speeches he said nice things about cleaning up pollution and protecting wildlife and supporting parks, even going so far as to make some specific promises. But people who looked beneath his words and heeded the old Watergate adage-follow the money-quickly saw where Bush's loyalties lay, according to this new book by author Robert Devine, supported in part by the Center for Investigative Reporting. The trail of campaign dollars led to big corporations and powerful industries, many of which will lose a lot of money if the federal government does a better job of protecting the environment, and will make a lot of money if the government weakens certain environmental regulations.

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."

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.

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.

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.

There are no laws or regulations prohibiting political contributions by a candidate for a federal judgeship. But 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.

Overall, CIR’s investigation found that at least 23 percent of Bush-appointed appellate judges (11 out of 47) and more than 16 percent of Bush-appointed district judges (34 out of 202) gave campaign contributions of some kind while they were under official consideration for a judgeship. Five of the appellate court judges and 15 of the district judges gave political donations after they were nominated.

The results of this investigation are detailed in:

Money Trails Lead to Bush Judges
By Will Evans | Salon.com | October 31, 2006

Money Trails to the Federal Bench
A Special CIR Report

* * * * *

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.

Is the Bush White House using the courts as another way to pay back special interests?

When President Bush nominated William G. Myers III for the 9th U.S. Circuit Court of Appeals in San Francisco in May 2003, judicial experience apparently wasn't a factor in the choice. Myers has spent little time in the courtroom as a lawyer, and has never been a judge. Instead he made his name as a lobbyist for major Republican donors, especially in the coal industry. Despite that lack of experience, the Senate Judiciary Committee voted 10-9 to move Myers' nomination to the full Senate on Thursday.

But a Federal Trade Commission decision to block a Wyoming coal consolidation that was made possible by a Myers lobbying blitz is shining a spotlight on the nominee's corporate background, and raising new questions about whether the Bush White House is using the courts as another way to pay back the special interests from which it raises millions of dollars. Corporate interests have become increasingly involved in attempts to influence the outcome of state judicial elections, so developing sway with the federal judiciary seems a logical step. There is no doubt that confirming Myers would give big business a friend on the crucial 9th Circuit Court of Appeals.

Myers and his law firm earned hundreds of thousands of dollars representing the cattle and coal industries that are so important in Vice President Dick Cheney's home state of Wyoming. The new 9th Circuit nominee lobbied successfully on behalf of the state's three largest coal operators, Arch, Peabody and Kennecott, to pass legislation to significantly boost the amount of coal these companies mine on U.S. government land. The government controls coal leasing on federal land to promote market competition among coal producers and thereby control costs that utilities must pay to produce electricity from coal for consumers. The three Wyoming giants also happen to be the largest coal operators in the nation.

When Sen. Dianne Feinstein, D-Calif., asked Myers about his role in lobbying for the legislation, he pointed out that it passed with widespread support and was signed into law by President Clinton just weeks before the 2000 election. What Myers didn't say is that the new legislation, known as the Coal Market Competition Act of 2000, helped pave the way for the proposed Arch-Triton consolidation, which the FTC has now ruled will weaken domestic competition in the coal industry, particularly in Wyoming, the so-called Saudi Arabia of coal.

Myers' client Arch Coal, the nation's second-largest coal producer, announced last year that it had reached agreement to purchase the seventh-largest producer, Triton. Consolidation in the coal industry was helped considerably by the higher coal-lease limits that are now allowed on federal land, thanks to Myers' lobbying. Arch currently leases or has applied to lease nearly 40,000 acres of federal coal in Wyoming, while Triton has over 11,000 acres in that state. Arch's acquisition of Triton would not have been possible under the pre-2000 rules that limited federal coal leases in any one state to 46,080 acres.

The proposed deal has been controversial even in the coal industry. One anonymous source told trade publication Coal Week last year, "I'm afraid that Arch purchasing Triton is going to get us into that oligopoly situation -- and I just wonder if anybody's going to fight it and complain to the Justice Department." Covering the Arch-Triton deal, Platts Coal Outlook reported, "Many coal industry officials believe concentration of production would mean a shift in market power toward coal producers instead of consumers." And a major electricity company that purchases Wyoming coal has voiced its concern to the government over the possible impact on coal prices for its coal-based generating plants. Arch Coal has vowed to appeal the FTC action in court. The head of Arch counters that "we continue to believe that this acquisition is pro-competitive and would create tremendous efficiencies that would benefit our customers and ultimately consumers of electricity."

The deal received lengthy scrutiny at the Federal Trade Commission because of its anti-competitive implications. In announcing its 4-1 decision on Tuesday, the FTC found that "the acquisition would result in the top three competitors controlling 86 percent of 2003 coal production in (Wyoming's key coal fields) and would substantially increase the possibility of, and harm from, coordinated interaction by these major players ... (the FTC action) will protect electricity consumers from higher energy prices that would result from reduced competition in (Wyoming) coal, an important low-cost energy source for electric generators." Almost all of Wyoming's coal is used to produce electricity in the approximately 26 states where it is shipped.

The FTC review comes on the heels of a Justice Department investigation into possible anti-competitive practices in Wyoming coal production, an investigation reportedly triggered by allegations about Myers' lobbying clients Arch, Peabody and Kennecott. (The lobbying disclosure forms that Myers' law firm filed for these three coal producers also seem to indicate they were at least coordinating their political activities back then, as each indicates identical payments for different reporting periods in 1999 and 2000.)

Why would the Bush administration want to support Big Coal with a friendly judicial nominee who has been a lobbyist for the three largest U.S. coal producers? Bush White House political guru Karl Rove is no stranger to judicial politics. Rove, a former Texas tobacco lobbyist, ran the campaigns of several Texas Supreme Court judges, who must stand for election and raise money from special interests. The growing involvement of special interests in the election of state judges has been highly criticized by legal experts, and even Supreme Court justices Anthony Kennedy and Stephen Breyer have questioned the trend. Millions of dollars is being raised from the business community, as well as from trial lawyers and unions.

Last year, the Washington publication the Hill reported that Senate GOP conference chairman Rick Santorum, R-Penn., urged business lobbyists to get more involved in federal judicial nomination battles, stating, "It's one of the most fundamental issues we have." Business groups and Republican supporters have donated tens of thousands of secret dollars to the newly formed Committee for Justice, a partisan group headed by former Bush White House counsel C. Boyden Gray that has run ads attacking senators for opposing the administration's judicial nominees.

The coal companies that Myers lobbied for, and the coal industry in general, routinely give substantial campaign contributions to congressional Republicans and the Republican Party. Peabody and Arch gave over a million dollars to congressional candidates during the 2002 election cycle, most of it to Republicans. The coal industry regularly has cases before the federal courts. Peabody Coal, for example, has two cases currently before the 9th Circuit.

Although the Senate Judiciary Committee approved the Myers nomination, Democrats may block a vote by the full Senate. President Bush can still prevail, at least during 2004, if he takes the opportunity to place Myers on the 9th Circuit with a recess appointment that bypasses the need for full Senate confirmation. A Senate recess is scheduled for April.

Ann McArthur contributed research to this report.

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About the writer: Dan Noyes is a reporter at the Center for Investigative Reporting. The Open Society Institute supports the Center's reporting on the federal judiciary.