Timeline of Uncertainty for Bush Judicial Nominee
The likelihood of a Senate vote on the nomination of Judge Terrence W. Boyle to the 4th U.S. Circuit Court of Appeals has generated considerable speculation since the Center for Investigative Reporting first revealed Boyle’s conflicts of interest in a Salon.com story May 1st.
Majority Leader Bill Frist had indicated in April that he would push for a vote on Boyle in May. After the CIR/Salon report, top Democrats called for Boyle’s nomination to be withdrawn, and Minority Leader Harry Reid – calling the report “the clincher” in Democrats’ opposition to Boyle – threatened to filibuster the nomination. Judiciary Committee Chairman Arlen Specter launched an investigation of the conflicts and held an unusual series of briefings for Senate staffers. As Frist seemed to step back from supporting Boyle, conservative advocacy groups turned up the heat on the Majority Leader, demanding a vote on the nomination, which is the only hurdle left between Boyle and one of the highest courts in the nation.
Here are some of the highlights concerning the Boyle nomination since CIR’s series of stories in Salon:
Congressional Quarterly’s Keith Perine reports that the White House will not speculate whether Bush will renominate any or all of the five contentious judicial nominees – including Boyle – sent back by the Senate at the start of the August recess. A Bush spokeswoman told CQ: “We’ll know the next step in September.”
-Judge Boyle acknowledged errors on two of his financial disclosure reports, for which his accountant takes the blame, according to public documents received by CIR. In a June 19th letter to the financial disclosure committee of the federal judiciary, Boyle wrote: “It has recently come to my attention that there was an incorrect inclusion of a reference to ‘Quintiles stock’ in my 2001 and 2002 financial disclosure reports.” Boyle presided over a case involving Quintiles in 2001 while reporting stock holdings in the company. But in defending himself against conflict of interest charges, he has denied owning Quintiles stock during that time,contradicting his own financial filings. In explaining the apparent errors, Boyle enclosed a May 30th letter from his accountant, Raymond W. Edwards of RSM McGladrey, Inc. Edwards wrote that despite not remembering or keeping complete notes of the exact situation, Boyle clearly “did not actually own those shares during either of those years.” Edwards attributes the mistake on the 2001 report to a “learning curve” and a confusing entry in a previous report. Edwards says his office reported Boyle’s sale of the stock on June 30, 2002 because by then the accountants had probably realized Boyle did not own the stock and therefore used an arbitrary date to wipe it from the records. Edwards concluded: “It is clear to me that the mistake on both reports was mine.” Multiple examples of Boyle’s conflicts of interest are shown here, with supporting documents here and here.
-Before adjourning after midnight for its August recess, the Senate sent the nominations of Judge Boyle and four other controversial judicial nominees back to the President. Bush will have to renominate them or drop them. If the President renominates Boyle when the Senate reconvenes in September, Boyle will again be just a Senate floor vote away from confirmation. This latest development is a result of a Senate technicality that during long recesses, all nominations must be returned to the President unless there is unanimous consent that they stay pending in the Senate. Though the President can easily just renominate his picks, sending them back to him signals opposition and forces the President to reaffirm his support or reconsider.
-Frustrated by the lack of Senate action on Boyle and other controversial nominees, a conservative coalition vows to launch an“August Radio Campaign on Judges” to pressure the Republican leadership.
-Roll Call’s Erin P. Billings reports that “Senate Republicans, facing a major political battle and a tight legislative calendar, said last week that there’s little chance they can move any of the remaining controversial judicial nominations before the November elections. Both GOP Senators and aides said the four weeks remaining on the pre-election schedule provides them with little opportunity to engage in a potentially brutal floor fight over a polarizing court nominee. The ideal time, they said, would be to consider a nomination now, before the Senate recesses for August and before the campaign season heats up. But that window is all but shut.” The Senate recess is scheduled to begin Aug. 4, ending the day after Labor Day. Billings writes that Boyle “arguably is the most inflammatory appointment” pending now. A spokeswoman for Majority Leader Frist told Roll Call that Frist hopes to move on one of the nominees before November. But, Roll Call reported, “GOP Senate sources said it is perhaps more likely that the nominations would get their day in a post-election lame-duck session. If Republicans lose seats to the Democrats on Nov. 7, they may want to try to use those remaining weeks to try to push one or more of those hopefuls through, recognizing that the task will be much more difficult in January.”
-In a “Dear Colleague” letter, Majority Leader Frist and Judiciary Committee Chairman Specter send Boyle’s explanation of his conflicts of interest to fellow senators. In the letter, Frist and Specter write, “If questions are raised about a nominee, the nominee deserves an opportunity to respond. Speculation and conjecture should not unduly influence the perception of a nominee or the confirmation process. For this reason, we sent Judge Boyle a letter inviting him to address conflict of interest allegations and any other matter that merited further explanation or clarification. In his response, Judge Boyle explains and refutes these allegations and puts them into context. We hope this information is helpful as you further consider his nomination. We look forward to working with you to confirm more qualified judicial nominees to the federal bench during this Congress.”
-Majority Leader Frist responds to questions from radio talk show host Hugh Hewitt on the status of Judge Boyle and another controversial nominee, saying: “They’re both individuals that we’re working on every day. And there have been certain accusations that have been made that our staff and we are working on, and we’ll have to prioritize it accordingly. But in terms of specific dates, I just can’t comment yet.” Frist acknowledges getting pressure to move on Boyle, and says both Republicans and Democrats are holding up his nomination.
-The Hill’s Alex Bolton reports that Manuel Miranda – head of a coalition of conservative groups – plans to pressure Senate Republicans “to circumvent Senate Majority Leader Bill Frist (R-Tenn.) if he does not schedule a vote on 4th Circuit nominee Terrence Boyle before the August recess.” Miranda said that if 16 senators sign a petition on Boyle’s nomination, they could force a floor vote, but he acknowledged it would be hard to do so without Frist’s approval. Meanwhile, Sen. Richard Burr (R-N.C.) has said that the timing of a vote on Boyle is “entirely” up to Frist. According to The Hill, “That has lead some conservatives to conclude more pressure needs to be placed on Frist.”
–A coalition of 80 conservative leaders – including Phyllis Schlafly, Grover Norquist and Alan Keyes – signed a letter to Senate Republicans asking that “you join our members in supporting Judge Boyle’s nomination and vote to confirm Judge Boyle immediately, without any further delay.” The letter goes on to defend Boyle against criticism from law enforcement groups.
-The American Bar Association lowers its rating for Judge Boyle. The ABA committee that rates judicial nominees revoked its unanimous “well qualified” rating. A majority of the ABA committee now rates Boyle “qualified,” while a minority still calls him well qualified, with one abstention.
-One of Boyle’s former clerks, Washington-based attorney Lars Liebeler, attacks Salon and CIR in a letter to the Washington Times. He also asserts that Boyle sold all his Quintiles stock before presiding over a 2001 Quintiles case – and that Boyle’s accountant confirmed this in a letter made available to all senators. Salon later points out this would mean Boyle made errors on two of his financial disclosure filings, where he reported owning Quintiles in 2001 and selling it in 2002.
-The Gang of 14, a moderate coalition of seven Democrats and seven Republicans who helped avert a Senate war over judicial nominees last year, met July 13th to discuss current controversial nominees, including Boyle. The Gang could make or break a nominee’s chances of confirmation. The Arkansas News Bureau reports that the senators met to “touch base” and didn’t announce any action.
-CIR reports in Salon that for those conflicts Boyle disputed in his letter, the judge’s explanation contradicts his own financial filings and federal ethics law. One ethics expert says Boyle was “”trying to fudge the language.”
-The Raleigh News & Observer quotes Sen. Richard Burr (R-NC) as saying that since Boyle has responded to the conflict of interest charges, “At the end of the day, this is a decision Bill Frist and Arlen Specter have to make.” A Frist spokeswoman told the paper that a vote on Boyle has not been scheduled.
-Boyle’s letter of explanation to Senate Majority Leader Bill Frist and Judiciary Committee Chairman Arlen Specter is made public. Boyle admits to some of the conflicts, calling them inadvertent, minor mistakes. He wrote: “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.”
-Roll Call’s John Stanton reports that “the White House, Frist and Judiciary Chairman Arlen Specter (R-Pa.) are continuing to work behind the scenes on a handful of controversial judges, including Bush nominee Terrence Boyle, hoping to free up one or more of these nominations from the partisan morass in which they have been stuck.” Frist, who aims to adjourn the Senate by Sept. 30, wants to focus this fall on highlighting “the GOP’s accomplishments since the Republicans took control of Congress in 1994,” Stanton reports. For judicial nominations, that means that, “in contrast to the 2004 election, when Republicans bemoaned Democratic obstruction of judicial nominees, the GOP this fall likely will emphasize its success in confirming judicial nominees, highlighting the fact that Bush has had more of his judicial picks confirmed at this point in his career than former President Bill Clinton had, and emphasizing that a majority of the judiciary now is made up of conservative Republicans.” A GOP aide told Stanton that limiting Senate floor fights over contentious nominees has allowed Frist to confirm more non-controversial ones.
-The Raleigh News & Observer reports: “The battle continues between U.S. Sen. Elizabeth Dole and Salon.com.” The paper also notes that “Dole, U.S. Sen. Richard Burr and others have been pushing Senate Majority Leader Bill Frist to schedule a floor vote on Boyle, with conservatives hoping Democrats’ opposition will galvanize Republicans months before midterm elections.”
-Joan Walsh, editor in chief of Salon.com, responds to Sen. Elizabeth Dole’s op-ed in the Washington Times: “Salon takes accuracy very seriously, and the record shows that Mrs. Dole’s charges are false…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 Mrs. Dole’s political agenda shouldn’t obscure the fact that Salon reported on Judge Boyle’s record, and the law, accurately.”
-Charles Hurt of the Washington Times reports: “In coming weeks, Republicans on Capitol Hill plan for the first major push on judges since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. were confirmed to the Supreme Court.”
-Sen. Elizabeth Dole (R-NC) writes an op-ed in the Washington Times: “The smear campaign began in earnest last month when the liberalInternetmagazine Salon.com published two articles accusing Judge Boyle of engaging in unethical behavior by participating in cases where he had a supposed financial interest. An examination of these cases, however, shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent.”
-Sen. Dole writes an op-ed in the Charlotte Observer: “Judge Boyle has never knowingly heard a case in which he had a conflict of interest, used his office for personal gain or abused the trust of the people he was appointed to serve. These allegations have emerged at a strategically determined time, in a frantic partisan attempt to distract from the merits of his nomination.”
-Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee puts this statement in the record: “Publicly available documents, including court docket sheets and Judge Boyle’s financial disclosure forms, appear to support the public reports that Judge Boyle ruled in multiple cases in which he held stock in one party…These matters used to be investigated in a bipartisan way. In fact, after these developments were reported in the media, the seven Democratic members in the group that helped avert the Republican “nuclear option” wrote a letter asking for a new hearing to look into the conflict of interest allegations. I regret that the Republican leadership is apparently determined not to allow a bipartisan investigation to be completed and determined not to hold the follow-up hearing.….If this nomination is not withdrawn, and the Republican leadership is determined to move forward with this nomination in response to right-wing pressure groups, issues arising from Judge Boyle’s many alleged conflicts of interest can be best addressed in a hearing, where Senators can ask questions of the nominee, listen to his answers, and assess the credibility of his explanations regarding the conflicts. That is our process. There is no reason to depart from it now.”
-NPR’s Nina Totenberg quotes one Republican member of the Gang of 14, referring to Boyle and other controversial nominees: “If these nominations were to come up for a vote, they might well lose, and there would be a lot of Republican blood on the floor afterwards.”
-Legal Times’ T.R. Goldman quotes an unidentified Senate GOP staff counsel saying, “We found five cases in which there were strict technical violations in which Boyle should have recused himself…But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.”
-Sen. Jon Kyl, a Republican member of the Judiciary Committee,discussed the prospects of Boyle and another controversial nominee with radio talk show host Hugh Hewitt: “I never quite know what kind of deals might have been made between the chairman and the ranking member to try to get other nominees out. But both of these have been languishing, and others have skipped over them, which leads me to believe that there have been some accommodations, shall we say, to at least move them to the back of the line. And even though at least one of them is ready for floor action, I doubt that you’ll see that quickly.”
-Majority Leader Bill Frist and Senate Judiciary Chairman Arlen Specter write to Judge Boyle, offering him the “opportunity to respond in writing.” They write, “As you know, questions recently surfaced about your participation in cases in which you may have had a financial interest. We believe you deserve the opportunity to address these issues directly, as well as any other matter that you believe merits further explanation or clarification.”
-North Carolina Republican Senators Elizabeth Dole and Richard Burr write a “Dear Colleague” letter saying that an examination of the conflicts documented by CIR “shows that any alleged breach by Judge Boyle was inadvertent, minor, and, in a number of instances, totally non-existent. Moreover, there is absolutely no evidence to suggest that Judge Boyle knowingly heard a case in which he had a conflict of interest, used his office for personal gain, or abused the trust of the people he was appointed to serve.”
-The Hill’s Alexander Bolton reports that “despite a likely fatal lack of support among the Republicans in the Gang of 14, conservative activists this week pushed hard to move the forlorn nomination of Judge Terrence Boyle.” Some Republicans in the Gang were ready to sign the letter asking for another hearing for Boyle, but were pressured to keep quiet by Sen. Mike DeWine (R-OH), who faces a tough fight for reelection, the Hill reports. Sen. Lindsey Graham (R-SC) said he would also support a second hearing for Boyle to address the conflicts of interest. According to the story, “A senior GOP aide said the Senate could vote on Boyle during July or after the August recess. The Senate Republican leadership is testing Boyle’s support but does not want a floor vote it cannot win, the aide said.” Meanwhile, the White House doesn’t appear to be fully committed to Boyle, the Hill explains: “The White House also has not responded to requests for information on Boyle’s financial interests from conservative groups seeking to defend the nominee.”
-Five of Boyle’s former law clerks write a letter to the Wall Street Journal: “Sen. Bill Frist should proceed promptly with a vote as previously promised, taking the fight to the floor if necessary to rebut the erroneous claims. Otherwise, the appellate confirmation process will spiral downward into the realm of cheap politics and personal attacks.”
–Legal Times’ Joe Crea reports that, despite pressure by conservative activists, Majority Leader Bill Frist “is not likely to gear up for a showdown on judges as a parting shot before he retires from the Senate later this year.” Crea quotes a former Republican Judiciary Committee staffer as saying: “There’s a difference when you put someone up based on their ideology and background and have a worthwhile debate and come out on top. But if you are going to put somebody up and the debate is going to be about if you broke the law or the war on terror policies of the administration…well, it’s a conscious decision by the majority leader not to erect this debate.”
-Conservative groups issue press releases expressing frustration at the one-year anniversary of the Judiciary Committee’s referral of Judge Boyle’s nomination to the Senate floor. The Committee for Justice urges Frist to appoint a Senate “shepherd” to guide and defend Boyle’s nomination.
-The Hill’s Jonathan Allen reports that, as Republican Senators pushed for a constitutional amendment to ban desecration of the flag, a coalition of conservative groups rebelled by calling for action on judicial nominees instead of the flag amendment. Allen wrote, “The broadside by nomination-focused conservatives raises the prospect that an effort to fire up conservatives could backfire on Senate Majority Leader Bill Frist (R-Tenn.) as Republicans try to draw distinctions between the parties before the November election.” The activists “warned that Republicans will suffer damage to their majority if they do not escalate a simmering battle over judges.” They also worry that Republican losses in November could snuff out the prospects of current nominees, Allen wrote.
-The letter by conservative activists to Republican Senatorsreferred specifically to Judge Boyle: “Rather ordinary, insubstantial, eleventh-hour charges against him have gone unanswered. Not a single senator has addressed the charges in his defense. It is no wonder that the White House is having trouble recruiting qualified men and women to serve on the bench. Opponents are to be expected, but not the carelessness of friends like you.”
-Judiciary Committee Chairman Arlen Specter’s staff announces multiple briefings to be held each day throughout the week on Boyle’s conflicts of interest, for all interested Senate staff. The Hill later reported that staffers from about 40 Senate offices met with committee staff.
-A coalition of conservative advocates held a press conferencein Washington, D.C., urging Republican Senators to move forward on confirming Bush’s judicial nominees. Several defended Judge Boyle and called for a floor vote on his nomination.
-Tim Funk of the Charlotte Observer reports that Sen. Richard Burr (R-NC) “said he had been told by the White House and by Frist that Boyle will get a floor vote.”
-A Wall Street Journal editorial addressed Boyle’s chances: “Democrats now say they’ll filibuster his nomination. They are distorting a couple of Judge Boyle’s civil rights decisions and making conflict-of-interest allegations that add up at worst to minor infractions. But Republicans don’t want a fight in an election year over race or ethics. And Judge Boyle’s onetime Senate champion — Jesse Helms — has long since retired. A controversial nominee without an angel to guide him through today’s polarized Senate is in trouble.”
-The Hill’s Alexander Bolton reports that “White House officials are making a concerted effort to cooperate with outside conservative groups to support and defend President Bush’s nominees to the federal bench, and they are also planning to work more closely with the Senate on confirming the nominees.” According to Bolton, “the Department of Justice is crafting a memo on Boyle’s conduct as a judge.” Sen. Jeff Sessions (R-AL) told The Hill that he met with Boyle and a White House aide “in a meeting he said he assumed was set up by the administration.”
-The Committee for Justice circulates talking points minimizing Judge Boyle’s conflicts of interest and comparing them to those of Supreme Court Justices: “Dems Use Alleged Conflict Of Interest Charges Against Circuit Court Nominee Terrence Boyle, Ignore Conflict Of Interest Questions Justices Ruth Bader Ginsburg And Stephen Breyer Faced.” The Hill later reports that the talking points “were written in the signature style of the White House and its ally the Republican National Committee.”
-Human Events’ Robert B. Bluey reports that Majority Leader Bill Frist held a conference call with conservative activists “to placate their mounting concerns about the lack of progress on judicial nominees. Judging from reaction today, Frist failed miserably.” Bluey continues: “Frist ducked a question about stalled nominees Terence Boyle and William Haynes, saying he was still waiting for advice from Judiciary Chairman Arlen Specter (R.-Pa.) on how to proceed. When did the Senate GOP leader start taking his cues from one of the party’s most liberal members? And even if that is the case, why would he use that as his excuse during a call with conservative activists? Frist will assert that he needs Specter on his side if he’s to make any progress on confirming judicial nominees, but that’s baloney. Frist sets the agenda, and if confirming nominees is a priority for him, it will be for the rest of the caucus.”
–Bloomberg reports that “Senate Republican leader Bill Frist retreated from his plan to promote Boyle to an appellate judgeship.” Frist didn’t commit to which nominee he would bring to the floor next. “‘We will take the others one by one,’ Frist told reporters this week. He said he had no plans to bring up Boyle.”
“Bench Warfare”: CIR reports in Salon.com that, with Boyle’s nomination hanging in doubt, a group of fourteen former law clerks to the judge launched an ambitious campaign to support him. They circulated a two-page memo aiming to refute, point-by-point, the CIR report. The memo, however, failed to disprove any aspect of the CIR report. In fact, it contained numerous distortions and factual errors, and ignored the letter of federal ethics law. 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 by CIR here.
“Key Bush Judge Under Ethics Cloud”: CIR reports in Salon.com that key Democrats denounced Judge Boyle on Capitol Hill, citing the CIR report that he violated federal law on conflicts of interest. As the debate over Boyle heated up, the White House acknowledged that Boyle should have recused himself in cases involving companies in which he owned stock – but continued its support of the nominee.
“Controversial Bush Judge Broke Ethics Law”: CIR’s first story documenting conflicts of interest by Judge Terrence W. Boyle, a long-time federal judge in North Carolina, who was nominated by President Bush in 2001 to the 4th U.S. Circuit Court of Appeals, based in Richmond, Va. This report in Salon.com shows that since his nomination, Boyle issued orders in at least nine cases that involved five different corporations in which he reported stock holdings, according to financial and court documents. Boyle’s financial disclosure filings and other documents used to research the story are posted by CIR here.