Bench warfare

Judge Terrence Boyle's former law clerks have launched a dubious defense of the embattled Bush nominee. Will their tactics backfire on Bill Frist and the White House?

Editor's note: This report is part of an ongoing series by Salon and the Center for Investigative Reporting scrutinizing the records of Bush judicial nominees. Read the rest of the series here.

By Will Evans

Read more: Politics, News, Ethics, Bush Judges

(Photo by AP/Dennis Cook)

Judge Terrence Boyle appears before the Senate Judiciary Committee on March 3, 2005.

May 23, 2006 | 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.

Next page: Republican leaders aiming to divert attention from Iraq and high gas prices -- and ethics scandals