In an Op-Ed published June 29 in the Washington Times, Republican Sen. Elizabeth Dole of North Carolina accused the online news magazine Salon.com of being at the center of a "smear campaign" by the "hard-core left" against Judge Terrence Boyle, a Bush nominee to the 4th U.S. Circuit Court of Appeals. Dole wrote that mounting opposition to Boyle, following two Salon articles, has been built on "a shameful tactic: character assassination."
Salon takes accuracy very seriously, and the record shows that Dole's charges are false. Salon -- which is a news organization, not a left-wing advocacy group -- stands by all of its reporting on Judge Boyle, which can be accessed by the public on this directory page.
On May 1, a report by Salon and the Center for Investigative Reporting revealed that since his nomination by Bush in 2001, Boyle has issued orders in at least nine cases that involved five different corporations in which he reported stock holdings, according to financial and court documents. Such activity by a U.S. judge is a violation of federal law.
Dole wrote, "An examination of these cases ... shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent. In all of the cases cited by Salon.com, there is absolutely no evidence to suggest that Judge Boyle in any way benefited financially from his involvement."
Boyle's violations in all of the cases cited by Salon can all be verified by reviewing publicly available court records and financial disclosures, many of which are available on CIR's Web site, here and here. Moreover, in its reporting Salon made no judgment of whether Boyle "benefited financially from his involvement" in the cases. Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on such cases -- no matter how small their reported stock holdings -- in order to uphold public trust in the judicial system.
Federal statute 28 USC Sec. 455 states that a U.S. judge must disqualify himself from any case with which "he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding." The law also states: "A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household." The same language is in the official Code of Conduct for United States Judges.
Regarding one case involving General Electric, cited in Salon's reporting, Dole wrote, "It turns out that Judge Boyle owned 50 shares of GE stock worth approximately $1,500 when the written decision in the Bursell case was released. Salon.com has used this fact to transform Judge Boyle into a caricature of judicial avarice." Dole added, "It is hard to see how Judge Boyle could have financially benefited from the Bursell decision."
The law further defines a judge's disqualifying "financial interest" in a case, as "ownership of a legal or equitable interest, however small."
Regarding a case involving Midway Airlines, in which Boyle ruled, Dole wrote, "The Salon.com story does not tell you that Judge Boyle was a trustee of a child's trust, in which he had no direct financial interest."
The law states that a judge's responsibility as a fiduciary "includes such relationships as executor, administrator, trustee, and guardian." (And in fact, Salon did report in two articles, on May 1 and May 23, that Boyle reported stock holdings in Midway in a trust account.)
Dole also wrote, "Salon.com even criticizes Judge Boyle for owning stock in Quintiles Transnational, a pharmaceutical company, and then participating in a case involving that firm. It turns out that Judge Boyle sold any Quintiles stock he owned in 2000 -- before the case, Quintiles v. WebMD, was filed in 2001."
But as Salon reported on May 23, Boyle reported owning Quintiles stock in 2001, while he made rulings favorable to Quintiles. Boyle's financial disclosure forms -- available at the CIR links noted above -- show that he sold that Quintiles stock in 2002, after the case was over.
The record also shows that Judge Boyle was clearly aware of the federal ethics law in question. Early in his nomination process in 2001, Boyle wrote to the Senate Judiciary Committee in response to its routine questionnaire: "I will avoid any conflict of interest, potential conflict of interest, or appearance of conflict of interest. I am disqualified from presiding over, or being involved with, any litigation involving any party with whom I might have any financial interest."
Dole's erroneous claims about Salon's reporting closely resemble the contents of a memo circulated publicly by a group of Boyle's former law clerks in May, which, in the absence of any explanation to date from Boyle himself regarding the cases in question, has become Boyle's proxy defense in the public debate.
A detailed discussion of that memo's numerous inaccuracies -- including those propagated by Dole in her June 29 Op-Ed -- can be found in a third Salon report, "Bench Warfare," from May 23, 2006.
It is up to the Senate to determine whether Judge Boyle's conflicts of interest disqualify him from a seat on the 4th U.S. Circuit Court of Appeals. But Sen. Dole's political agenda shouldn't obscure the fact that Salon reported on Judge Boyle's record, and the law, accurately.
-- Joan Walsh, Editor in Chief, Salon.com
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