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, here. 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."