Senate: Vote Judge Boyle Up Or Down Before Leaving Town Part 1 of 2
The United States Senate is planning a lengthy August recess. But, during the 109th Congress, the Senate has confirmed only 46 judicial nominees. Democrat obstructionism and Republican tolerance of it are to blame for this dismal performance.
The United States Senate is planning a lengthy August recess. But, during the 109th Congress, the Senate has confirmed only 46 judicial nominees. Democrat obstructionism and Republican tolerance of it are to blame for this dismal performance.
The Third Branch Conference, a nationwide coalition of grasstops leaders working to improve the federal courts, pointed out how dismal the performance of the current Senate is: "By comparison, the 107th [Congress] confirmed 100 [judges]under Democrat control, the 108th confirmed 104. In the 103rd Congress, when the Senate last confirmed two Supreme Court justices (Breyer and Ginsburg), Democrats also confirmed 127 other Clinton judges."
The Third Branch Conference and the Judicial Confirmation Network (www.judicialnetwork.com), a national citizens' organization that "works to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote," have been (1) working to solve the underlying problem: disrespect for the procedure prescribed in the Constitution by which the President alone makes nomination and a presidential nominee is to be approved (or not) by a simple majority of Senators voting; (2) urging timely Senate action on all judicial nominees; and (3) calling particular attention to the denial to date of Judge Terrence Boyle's right to an up-or-down vote on his long pending nomination. (Judge Boyle is the longest waiting judicial nominee in history, having been nominated in May 2001 and his nomination having been on the Senate floor for more than a year.)
Manuel Miranda. chairman of the Third Branch Conference and former nominations counsel to Senator Frist, did not mince words: "One solid circuit court confirmation this year is not an accomplishment. The Senate must give an honest, up or down vote to Judge Terrence Boyle, William Myers and Jim Haynes just as Leader Frist has promised for all."
The Senate needs to be spurred to action. Distinguished jurists like Judge Terrence Boyle (up for confirmation to the United States Court of Appeals for the Fourth Circuit for what sems like forever) do not deserve to be slurred and stalled as a result of a willful minority's dissatisfaction. If inaction continues, President Bush should call the Senate back into session for the purpose.
In the absence of a good reason to oppose Judge Boyle, his opponents have resorted to the usual tactics of the scoundrel: character assassination and record distortion.
Judge Boyle has done what a sitting judge can do in his circumstances: respond in less than two weeks to a joint letter from Senator Bill Frist, the Majority Leader, and Senator Arlen Specter, the Chairman of the Senate Judiciary Committe, that should have been sent months ago, but, thankfully, finally was sent.
The text of Judge Boyle's powerful (and poignant) letter follows.
"I am writing in response to your joint letter of June 23, 2006. I thank you for the opportunity to respond and comment on the recent claims regarding my nomination.
"The claims that I ruled in cases where I may have had a conflict of interest surprised and upset me, as I consistently have made the effort to be proactive and diligent in screening for actual and apparent conflicts in my cases. I can state categorically and truthfully that I never have accepted or maintained a case assignment, whether criminal or civil, while knowing that I had an actual or apparent conflict of interest. Over the course of my twenty-two years of service as a federal district judge, during which time I have presided over more than 16,000 cases, I have taken my duties seriously and have strived to observe the judicial canons and ethics rules, including those on conflicts of interest. Never during my tenure as district judge have I received a complaint or a question from any party suggesting that I may have had a financial conflict in a case.
"Case assignments in this district are random and occur without the judges’ prior knowledge or involvement. I always have made a conscientious effort, as has my chambers, to screen cases, once they have been assigned to me and the docket is received, for conflicts. Additionally, I have provided the Clerk’s Office with information about my financial interests so that they can screen my cases for conflicts at the time of assignment. The screening process has regularly worked, and cases have been reassigned upon the discovery of the appearance of a conflict. This method was the best practice available over time, but it was not flawless. Some cases were missed by the screening process. This mistake was inadvertent and unknown to me, my chambers, the Clerk’s Office, and the various parties in the cases, until the recent conflict of interest allegations were raised.
"As soon as I became aware of the conflict of interest claims, I undertook a vigorous review of all of my cases, including the nine mentioned in the allegations. i immediately responded to the allegations and summarized the cases at issue for the Administration and Senate Judiciary Committee staff. Additionally, I wrote a letter of explanation to the Chief Judge of the Fourth Circuit and to President Bush. It is my understanding that copies of my financial disclosures, and other information about the relevant cases have been made available to Senators in a reading room.
"My review indicates that of the nine cases cited, the allegation in one case is categorically untrue. I did not own the stock, Quintiles, as alleged, at any time when I had a case involving the company as a party. Additionally, in three cases cited by opponents, the stock at issue, Midway Airlines, actually was owned by one of my children’s trusts, of which I was a trustee with no financial interest. Due to the bankruptcy of the corporation, the stock was virtually valueless with a total value of $2.50, or less.
"In approximately four cases, the screening system in place at the Clerk’s Office and in my chambers missed the appearance of a potential conflict. Accordingly, i unknowingly and unintentionally participated in these cases while I held a minimal number of shares in one of the parties. The stock holdings involved in these cases were ten shares of CSX Corporation; 25 shares of America Online; and 50 shares of General Electric Company. 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.
"These situations were an oversight, an inadvertent mistake. Whenever a potential conflict was detected, each case immediately was reassigned to a different judge. I can assure you that where reassignment was missed, whatever minor financial interest I may have had in the case in no way affected my decision-making or the outcome of the case. I believe that a review of the cases demonstrates that. Further, it is clear that my rulings in these cases in no way whatsoever could have affected the value of the stock in the company at issue.
"Since the conflict of interest allegations surfaced, I have been in close consultation with the Clerk’s Office to determine how the oversights occurred and to ensure that future mistakes do not occur in the screening of my cases and the cases of other judges in this district. Electronic data-based conflict screening was not available in this district until recent weeks, and screening was conducted manually. I can report that I am the first judge in this district to adopt the electronic screening, and it is in place now.
"As you have provided me the forum, I also would like to comment on two other allegations frequently raised about me: (1) that my rulings have an above-average reversal rate; and (2) that I am unfavorable to law enforcement. Neither of these allegations is based in fact.
"With regard to the issue of reversal rates, as I mentioned above, I have presided over more than 16,000 cases as trial judge. The Clerk’s Office in the Eastern District of North Carolina has worked with majority and minority staff of the Judiciary Committee to provide them with information on cases that have received negative treatment. it is my understanding that the Committee staff determined that my reversal rate was lower than the national average. I decide each case that comes before me, to the best of my ability, based upon the facts and the law as presented. In every case, I have made a conscientious effort to find the facts fairly, where the facts were for my consideration, and to take the law as it exists and apply it evenly to each case.
"Inevitably, things happen upon appellate review from the trial court. Sometimes the law changes during the interim period, or quite understandably, a different group of judges may interpret close issues of law differently than a trial judge. Were this not the case, there would be no need for reviewing courts.
"I can assure you that my decisions as a trial judge are not based on ideology, nor do I use the bench to set policy. I apply the law to each case to the best of my ability.
"With regard to the concerns of state and local law enforcement, I can state unequivocally that the concerns are unfounded. I believe they stem from a misinterpretation of a small number of decisions I have issued in cases where a police officer has sued a police department in an employment dispute. I have the utmost respect for the men and women who have dedicated their lives to law enforcement. However, as in any other case before me, I must rule on the facts and the law. I can assure you that the identity of the parties in a case has never influenced my decision.
"The cases upon which these allegations are derived are cases in which an individual police officer, having received some discipline or adverse employment action, sued the police chief, the police department, or the government employer seeking to recover damages and other relief from the discipline imposed. These cases involved state or local police officers as parties on both sides. For example, the Supreme Court recently addressed the issue of public employees making statements in their official capacity and came to the same conclusion I did in a similar case. Garcetti v. Ceballos, 2006 WL 1458026. Additionally, all of these cases involved the clear application of binding appellate and Supreme Court law.
"As for the criminal cases that come before me, these cases are handled predominantly by federal law enforcement officers, not city, county, or state police officers. Throughout my service as a trial judge, I have presided over thousands of criminal cases and have never received any complaints from federal law enforcement officers.
"I appreciate the opportunity to provide this information. I pledge my commitment to maintain the highest standards of integrity and professional conduct in my continued service as judge. Thank you for your continued support."
Give that Judge JUSTICE!
Mr. Miranda has succinctly stated the general problem, the practical solution, and the proper political consequence for continued obstructionism: "Today [President] George Bush's confirmation rate (70%) for circuit judges is the lowest of any president. The circuit courts stands at 10% vacancy rate. And yet the Senate walks slowly. Leader Frist must end the silent filibusters in the 22 days he has left, and if he is obstructed, then the vote that matters must be the one in November when the people decide."
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
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