Bench Memos

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Salon vs. Judge Boyle


Will Evans of Salon has a follow-up piece on the ethics allegations that he has raised against federal district judge Terry Boyle, whose longstanding nomination to the Fourth Circuit is pending on the Senate floor.  For purposes of this post, I will assume that all of Evans’s factual allegations are accurate.  In other words, I will assume that since 2001 Boyle has issued orders in nine cases involving corporations in which he had minor stock holdings.  What bearing would this have on Boyle’s fitness for the Fourth Circuit?  Let’s consider:


1.  As Howard Bashman explains here, the provision of federal law requiring that a federal judge recuse himself whenever he has any stock interest, no matter how small, in a company is “grossly over-inclusive” and does not remotely correlate with situations where recusal would be warranted.  Indeed (as Bashman also notes), this point is readily established by the fact that a much larger stock interest held via a mutual fund does not require recusal.  Bashman points out that recent history with lots of respected federal judges shows that the “need to recuse [in such cases], in practice, appears easy to overlook.”  


Perhaps Evans is unaware that, as was widely reported in 1997, Justice Ginsburg apparently violated that same provision of law 21 times in just over a year.  He certainly doesn’t inform his readers of that fact.  Instead, he quotes a “judicial ethics scholar” who, evidently unaware of the broader history of inadvertent violations of the provision, accuses Boyle of “gross negligence” and an “utter disregard of a judge’s obligation.” 


2.  Evans’s initial story strongly implied in its lead paragraph that Boyle’s purchase of GE stock—some 50 shares, apparently—influenced his ruling in a case involving GE.  Now that the plaintiff’s attorney and Boyle’s former clerks have demonstrated the absurdity of such a contention, Evans tries to fault the former clerks for supposedly not recognizing that Boyle would have violated the provision even if his ruling wasn’t influenced by his stock ownership.  But Boyle’s clerks were, it seems clear, responding to Evans’s far more insidious insinuation.


3.  Evans likewise faults Boyle’s former clerks for maintaining that “Boyle has never received or kept a case assignment knowing he had a conflict, or the appearance of a conflict.”  But this proposition goes directly to the broader question whether a handful of innocent, inadvertent violations of a “grossly over-inclusive” ethics rule should be treated as a hanging offense or as the equivalent of a few minor parking tickets.  As the Ginsburg precedent powerfully shows, I believe that the latter treatment is the correct one.


Let me be clear:  I am not contending that the ethics rule should be ignored merely because it is “grossly over-inclusive.”  I am maintaining simply that innocent, inadvertent violations of it do not bear meaningfully on a judge’s fitness for office. 


4.  As I explained in this essay from last week, Senate Democrats have ignored far more serious ethics problems that laughably left-wing Democratic judicial nominees have had.  Judge Boyle has been a federal district judge for 22 years, and even the ABA has unanimously rated him “well qualified.”  His nomination has been pending for more than five years.  Are Senate Republicans really going to permit these minor ethics allegations to disrupt his nomination?


Tags: Whelan


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