Hanging Judges

Acrimony Over Bush Judicial Nominations Resurfaces
Senate Democrats Threaten To Filibuster Conservative Duo

By Charles Babington
Washington Post Staff Writer
Wednesday, May 3, 2006; Page A05

After months of relative quiet, senators raised the prospect yesterday of a return to bitter battles and a possible filibuster over judicial nominations, as the White House urged confirmation of two conservative nominees who have sought approval for years.

Democratic leaders said they certainly would filibuster one of the nominees, Terrence W. Boyle, and might filibuster the second, Brett Kavanaugh, if Republicans refuse to call him back for a second hearing before the Senate Judiciary Committee. The partisan rhetoric was the strongest signal yet that the Senate might revisit the brinkmanship that brought the chamber to the edge of crisis a year ago, when a bipartisan group of 14 members crafted a temporary cease-fire.

The "Gang of 14" pact cleared the path for confirmation of several appellate court nominees whom Democrats had filibustered in President Bush's first term, and it doomed the chances of a few others. It also narrowed the Democrats' tactical options for opposing Bush's two appointees to the Supreme Court last year. But the Kavanaugh and Boyle nominations may test its resiliency.

In 1991, President George H.W. Bush first nominated Boyle, a U.S. District judge in North Carolina, for a seat on the U.S. Court of Appeals for the 4th Circuit. Liberal groups vigorously opposed him -- as they do now -- saying his rulings have shown a disregard for minorities and disabled people. His nomination languished, and he was renominated in May 2001.

Last June, a month after the Gang of 14's breakthrough, the Judiciary Committee endorsed Boyle on a party-line vote, but the Senate has yet to give him a final vote. A recent report in Salon.com, describing Boyle's stock holdings in companies involved in lawsuits he was hearing, has given Democrats new ammunition.

"I can't imagine how President Bush could bring him to the Senate for confirmation," Senate Minority Leader Harry M. Reid (D-Nev.) told reporters yesterday. If GOP leaders insist on a confirmation vote, he said, Democrats "without question" will launch a filibuster.

Controversial Bush judge broke ethics law

A Salon/CIR investigation reveals that Terrence Boyle, a key circuit court nominee touted by the White House and Senate Majority Leader Bill Frist, ruled in multiple cases involving corporations in which he held investments.

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

May 1, 2006 | Starting in 2002, Terrence W. Boyle, a longtime federal district court judge in North Carolina, presided over a lawsuit against General Electric, in which the corporation stood accused of illegally denying disability benefits to a long-standing employee. Deep into the case, on Jan. 15, 2004, Judge Boyle bought stock in General Electric, according to a review of his financial filings. Two months later, he made his ruling: Boyle shot down the plaintiff's claims to long-term and pension disability benefits, granting him only a fraction of the money in short-term compensation for a debilitating mental condition.

Boyle, 60, a controversial Bush nominee strongly opposed by Democrats and liberals as a staunch foe of civil rights, is on the verge of joining one of the country's highest courts. An investigation by Salon and the Center for Investigative Reporting has revealed that Boyle apparently violated federal law prohibiting judicial conflicts of interest -- not only in the G.E. case, but in many instances since his nomination by President Bush five years ago.

Bush nominated Boyle in 2001 to the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. Senate Democrats have blocked confirmation of the one-time Jesse Helms staffer, though his conflicts of interest on the bench have not come to light until now. Senate Republicans pushed Boyle through the Judiciary Committee last summer. Now, with the full-throated backing of Senate Majority Leader Bill Frist and the White House, Boyle appears to be headed for the final stage of the process -- a full Senate vote that could come soon and may reignite partisan warfare that in 2005 led to threats of a "nuclear option" to wipe out filibustering of judicial nominees. Frist reportedly aims to use a fight over Boyle and other controversial nominees to fire up conservative voters and help fill campaign coffers heading into congressional elections this November.

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."

At the very time Boyle typed up that pledge of integrity, however, he was in the middle of a case involving Quintiles Transnational, a pharmaceutical services company in which he reported stock holdings, and on whose behalf he had been issuing favorable rulings.

In fact, since his May 2001 nomination, 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. In most of the cases, Boyle ruled in favor of the companies in which he had financial interests -- though his participation was a violation of the law regardless of how he ruled. 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 stock holdings -- in order to ensure public trust in the judicial system. From 1999 to 2004 (the years that Boyle's financial disclosure forms are currently available), he broke the rules in at least one case per year. Boyle presided as chief judge of the U.S. District Court of the Eastern District of North Carolina during those years.

"It's a pretty egregious example of a judge disregarding the brightest-line rule of judicial ethics," said Doug Kendall, executive director of Community Rights Counsel, a nonprofit public-interest law firm in Washington that works to expose ethical conflicts of judges.

Professor Leslie W. Abramson, a judicial ethics expert at the University of Louisville's law school who reviewed Boyle's record, said it shows at least a pattern of negligence, if not one "heading toward intentional disregard" of federal law. "Judge Boyle's conduct," Abramson said, "places his own and the judiciary's integrity and reputation at risk."

The pattern here is consistent with Bush's "unitary executive" theory: ethics and even competence are really no bar to a Bush appointment, as long as a nominee will swing their decisions toward corporate interests and away from the little guy. The federal judiciary has been swung so far away from the interests of the least powerful in the last five years that it will take at least a generation to undo the damage.