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Conflict puts vote on Boyle in doubt

Allegations spur opponents to fight judicial nomination


News & Observer
Barbara Barrett
May 5, 2006

WASHINGTON - Allegations that U.S. District Judge Terrence Boyle broke a conflict-of-interest law have strengthened Democrats' resolve to fight his promotion and raise doubts about whether the North Carolina judge's nomination will ever get a full vote in the U.S. Senate.

Judicial experts say the accusations against Boyle -- that he decided cases in which he had reported a financial interest -- clearly break a federal law requiring judges to recuse themselves in such cases. But there are questions about whether the situation is enough to scuttle Boyle's nomination to a higher court after years of hurdles.

"For Judge Boyle, the problem may be more political than legal," said Jonathan Turley, a legal ethics expert and professor of law at George Washington University. "His nomination was obviously troubled from the start, and any further controversy is likely to have a magnified impact at this stage."

Boyle, who once worked as an legislative aide to former U.S. Sen. Jesse Helms and who married the daughter of one of Helms' top political advisers, has been one of the state's most influential federal judges for years. A resident of Edenton, he has served as a U.S. District Court judge in the Eastern District since his appointment in 1984 by President Reagan.

He was first nominated to the 4th Circuit Court of Appeals by President George H.W. Bush in 1991. Then, in 2001, President George W. Bush nominated Boyle to a seat on the appeals court, which is one step away from the Supreme Court, and renominated him in 2005.

Democrats oppose Boyle because of his rulings on civil rights and disability cases and his higher than average turnover rate by higher courts. Boyle finally had a hearing last summer in the Senate Judiciary Committee and was voted out of committee on a party-line split.

Senate Majority Leader Bill Frist, responding to a request from U.S. Sen. Elizabeth Dole, had pledged in April that he would try to bring Boyle up for a floor confirmation vote this month.

Now, any vote on Boyle is in question.

Frist said Tuesday that he needs to look more closely at the allegations.

Filibuster threats

Democratic leaders are making floor speeches about Boyle and renewing threats of a filibuster.

And a prominent Senate Republican, Jon Kyl of Arizona, told Congressional Quarterly on Wednesday that some circuit court nominees "may drop out" to get others through.

"We'll take care of the ones who've been nominated with one or two exceptions," Kyl said. He didn't name any nominees.

Boyle, who works in North Carolina's Eastern District, could not be reached for comment Thursday. A secretary said he was in court.

The allegations against Boyle were first reported last weekend by and the Center for Investigative Reporting.

The report said that since May 2001, Boyle has ruled in nine cases involving five corporations in which he reported stock holdings. Among the companies involved were General Electric, America Online and Midway Airlines. In all the cases, Boyle's stock holdings were less than $15,000, and many were substantially less, the report said.

Andy Whiteman of Hartzell & Whiteman in Raleigh, who had a client in one of the cases cited in the report, told The News & Observer on Monday that Boyle was not unfair to his client in his handling of the disability case against GE. Whiteman also said that he would not have asked Boyle to step aside in the case if he had known of his small investment in the company.

Still, legal experts say Boyle's actions go beyond an ethical lapse.

"The statute could not be clearer," said Steve Lubet, a professor of law and ethics expert at Northwestern University. "It clearly says you must disclose your financial interest, no matter how small... It's the law, and judges ought to adhere to it."

Still, Lubet said judges probably err occasionally, either forgetting about the law or making mistakes.

And, he said, the breach should not necessarily disqualify Boyle from promotion to a higher court.

But Doug Kendall, executive director of a judicial ethics watchdog group in Washington, said Boyle should go no further.

"I think the president should withdraw his nomination," said Kendall of Community Rights Counsel. "And if the president doesn't, [Boyle] should be voted down in a bipartisan manner."

This winter, a judicial nominee from Oklahoma withdrew his nomination after similar allegations were raised by

On Thursday, Democratic Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said the allegations need scrutiny.

"Whether or not it turns out that Judge Boyle broke federal law or canons of judicial ethics, these types of conflicts of interest have no place on the federal bench," Leahy said in a committee hearing. "Certainly they should be investigated."

But Boyle continues to have GOP support.

Sen. Jeff Sessions of Alabama, a Republican judiciary committee member, questioned the report.

"Judge Boyle has a fine reputation," Sessions said. "Absent something unexpected, I think he has a good chance of being confirmed."

A White House spokeswoman said Thursday that President Bush continues to back Boyle. And his home-state senators haven't wavered.

The latest allegations "must mean people are actually worried he'll get an up or down vote," said U.S. Sen. Richard Burr, a Republican from Winston-Salem. "You'd expect that if there was anything out there, it'd be out by now."

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