Will Evans

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 “He asked to have his name withdrawn, and we’ve honored that request,” said White House spokesman David Almacy.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.”

Leahy, along with Sen. Russ Feingold, is taking Hardiman to task for political contributions he made to key Republicans while he was under official consideration for his district judgeship, as revealed in October by Salon and the Center for Investigative Reporting, after a four-month investigation of Bush judges. Hardiman gave a combined $4,400 to Republican Sens. Arlen Specter and Rick Santorum (who lost his reelection bid in November) between the time Hardiman interviewed for his judgeship with the senators’ selection committee and when Bush nominated him. Such donations have raised ethical questions — and political giving by judicial candidates was criticized by, among others, several Bush-appointed judges contacted for the Salon/CIR report. Even Specter, the outgoing Judiciary Committee chairman, told Salon he would have instructed Hardiman to stop the contributions if Specter had realized Hardiman was continuing to give him money.

With Hardiman up for a promotion — nominated by Bush in September to the 3rd U.S. Circuit Court of Appeals — Leahy and Feingold took the opportunity in November to send Hardiman some pointed written questions.

Hardiman wrote back in early December. “I believe that reasonable minds could differ as to whether individuals under consideration for judicial office should refrain from making political contributions,” he said in his response. “In my case, I thought it prudent and appropriate to cease all political activities once I was nominated.”

If Bush renominates Hardiman next year (Hardiman never made it through committee in the current Congress), we’ll see if “reasonable minds” prevail on the newly Democratic-controlled Judiciary Committee.

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 protigi 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.”

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.

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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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