In this letter to Senator Frist and Senator Specter, Fourth Circuit nominee Terry Boyle responds to Salon’s hyperventilating charges that he mistakenly took part in a small number of cases. Boyle’s account makes clear that his stock holdings were trivial and could not possibly have been affected by the minor cases he inadvertently handled. Yes, he violated the overprotective rule (as Justice Ginsburg did in a much larger number of cases that surely involved much larger stock holdings), but those violations plainly were innocent and inadvertent and did not involve any actual conflict of interest.
Let me make clear what I have said before: I am not contending that the ethics rule should be ignored merely because it is (in Howard Bashman’s apt phrase) “grossly over-inclusive.” I am maintaining simply that innocent, inadvertent violations of it do not bear meaningfully on a judge’s fitness for office. They instead merely illustrate, as the Left recognizes when one of its own commits the violation, that “We’re all fallible, and even the best conflict checks sometimes leave something unaddressed.” Chairman Specter will certainly recognize that point, as his dear friend (and outstanding judge), the late Edward Becker of the Third Circuit, was found to have committed two such violations in the single year of cases that was examined.
Will Evans of Salon, though, cannot stop his campaign of distortion. His discussion of Judge Boyle’s letter begins by asserting that Boyle “has admitted to presiding over several cases in which he held a financial interest.” (Emphasis added.) That is simply not true. Boyle has admitted to inadvertently presiding over several cases that involved a party in which he held a very minor financial interest. But he plainly did not have any financial interest in the cases themselves.
Similarly, Evans cites a supposed ethics expert who asserts that “Boyle was ‘trying to fudge the language’ by calling clear-cut violations “the appearance of a potential conflict.” But Boyle wasn’t fudging anything. The rule is “grossly over-inclusive” precisely because it applies to the merest “appearance of a potential conflict.” Boyle was admitting his “clear-cut violation” of this overprotective rule.
Evans’s slash-and-burn recklessness is also evident in the next-to-last paragraph, where he claims that Boyle “apparently contradicted” the acting clerk of Boyle’s court. The clerk told Evans in April that the court didn’t use a computer system to screen for financial conflicts, and Boyle states in his letter that a computer screening system wasn’t available in his court “until recent weeks.” Somehow Evans sees an apparent contradiction in these entirely compatible propositions.