A Reminder from Rushton

NRO has posted this article from CFJ Executive Director Sean Rushton reminding the GOP that the issue of judicial nominations has helped them win both state and national elections in the past and could help them win important Senate elections in the future.

The article has been linked to by Matthew Franck over at Bench Memos who notes that Robert Novak has a column out today with a theme similar to Rushton's.

ConfirmThem also has a link to the article along with comments including this one:

The Liti-GATOR Posted on July 27th, 2006 at 12:48 pm. About 'Remember
Judges?'.
Judges are the best issue for the GOP. The senate candidates ought to make them a central focus of campaign commercials by reminding voters of the many ridiculous decisions from the courts, especially in the last few years, and let the voters know that they will get more such decisions if the dims win!!!

Dan Nowicki of the Arizona Republic's political blog has also posted Rushton's article in part along with highlights from a interview Kyl gave to Hugh Hewitt concerning the Haynes nomination.

Finally, Steve Dillard at Southern Appeal links to Rushton's op-ed and asks, "When will Republicans learn that the “judges issue” is one of the strongest reasons to vote for their party?"

Is a trial lawyer by any other name still a trial lawyer?

Cybercast News Service (CNS) is reporting that the Association of Trial Lawyers of America want to drop the "trial lawyer" part of their name and go with The American Association of Justice. It's part of a PR effort to "'fight back' against attacks on what some consider an overly litigious society." Replace "some" with "almost everyone who isn't a trial lawyer" and they'd be closer to the actual truth.

Some don't see how the name change changes much, however.

The group should change its tactics instead of its name, said Lisa A.
Rickard, president of the U.S. Chamber of Commerce Institute for Legal Reform." Rickard called the name change "an astounding admission of the unpopularity of trial lawyers in America."

She said lawyers have no one but themselves to blame: "Decades of abuse of the civil justice system by some of their members have created a sue-happy litigation climate that results in lost jobs, higher consumer prices, and ultimately, little justice for anyone -- even the victims that they represent."

Rickard said the name change is nothing more than "cosmetic surgery" unless trial lawyers make a "real commitment to comprehensive reform of our civil justice system."

Press Release from Third Branch Conference

THIRD BRANCH TO SCORE 109th SENATE ON JUDGES
First time that conservatives will measure effort and obstruction on heated nominations issue

Washington, D.C. - The Third Branch Conference, a coalition of grasstop leaders nationwide working to improve the federal courts, today announced that it will score votes and other Senate action or inaction on judicial nominations in the 109th Congress. While several organizations on the left regularly score Senators votes on judicial nominations, and the American Conservative Union and the National Rifle Association have scored particular appellate court votes as part of their composite ratings, no center-right organization has ever scored for entire effort or obstruction solely on judicial nominations. TBC will do so as a project of its "Scoring Members," a sub-group of its membership.

The rating will consist of two tallies, which when combined will produce a "total rating." The first will be a "voting rating" that will measure performance in Senate floor votes, both cloture and confirmation votes, for appellate and Supreme Court nominees, as well as the number of votes taken. The second will be the "obstruction rating" that will hold each Senator accountable for delays of any judicial nominee for the number of years they have waited in the Senate, for the length of time they wait on the Senate floor or in Committee without a vote, and for votes in the Senate Judiciary Committee that result in unfavorable recommendations, no recommendation, or no referral. The obstruction rating will also hold participation in the Gang of 14 accountable for delays or withdrawals by nominees attributable to them. It will also penalize the two floor leaders in each party. The voting rating will then be measured against the obstruction rating to produce the "total rating."

"The result will be that Senators will have an incentive to be their leader's keeper because the obstruction or inaction of the leadership, the Committee chairman or one former trial lawyer in the Gang of 14 will be counted against every senator," said Manuel Miranda, chaiman of the Third Branch Conference. "Effort is effort. This Congress has so far taken fewer votes on judicial confirmations than any time since the first two years of the Reagan administration. It has allowed nominees to withdraw and sit without end. It is the least accomplished Senate in 25 years. It is no wonder that the White House has trouble filling seats, with a Senate like this," Miranda said.

In the 109th Congress so far, the Senate has confirmed only 46 judges. By comparison, the 107th confirmed 100 under Democrat control, the 108th confirmed 104. In the 103rd Congress, when the Senate last confirmed two Supreme Court justices (Breyer and Ginsburg), Democratrs also confirmed 127 other Clinton judges.

"Today George Bush's confirmation rate (70%) for circuit judges is the lowest of any president. The circuit courts stands at 10% vacancy rate, arate over which Democrats thought to high under Orrin Hatch and Trent Lott's leadership. And yet the Senate walks slowly and in secret," said Miranda.

The full explanation of methodology and prelimnary ratings for each senator will be announced in mid September. The final tallies will be announced before the November elections. In 2008, the ratings will rate performance in both the 109th and 110th Congresses.

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Lars Liebler on Salon's "Unbiased" Reporting

(Hat tip: Confirm Them)

Salon's bias

In her letter to the editor on July 5, Joan Walsh, the editor-in-chief of Salon.com, attempts to refute Senator Elizabeth Dole's robust defense of Judge Terrence Boyle. Miss Walsh states that Salon is a "news organization, not a left-wing advocacy group," and that Salon "takes accuracy very seriously." Both claims are false.

As Mrs. Dole made clear in her editorial, it is now well established that the infractions alleged against Judge Boyle in the Salon.com series are either plain wrong or truly trivial. Take the Quintiles case as an example. Contrary to Salon's report, Judge Boyle did not own Quintiles stock during the pendency of a Quintiles case -- he sold it in 2000, before the case was even filed (a letter from his accountant, made available to all senators and staff, confirms the facts).

Salon's dogged pursuit of false or immaterial issues suggests that Salon is less concerned with accuracy and substance that its own advocacy. Despite Ms. Walsh's assertion that Salon.com is a "news organization, not a left-wing advocacy group," the fact is that the so-called "investigation" published by Salon was nothing but a piece prepared by a reporter for the "Center for Investigative Reporting," as part of a project "primarily funded" (in its own words) by George Soros' Open Society Institute.

We're frankly surprised that Miss Walsh now attempts to distance Salon from its liberal, left-wing heritage. David Talbot, the founder of Salon, has proudly stated: "I come out of a tradition of liberal journalism, left-wing journalism." And Miss Walsh, for her part, stated in an interview given upon her ascension to the editor-in-chief position at Salon, that she was depressed that "so many of us liberals" were surprised that President Bush won the 2004 election.

Furthermore, when asked: "As a left-leaning site that incorporates both news and opinions, what have been the major issues arising from George Bush's reelection?" Miss Walsh opined that "there's plenty of room for smart critical coverage, both of the Bush administration and its hubristic overreaching on Social Security and Iraq and the deficit, as well as of the battle for the soul of the Democratic Party."

Strictly a "news" organization? On the contrary, there appears to be "plenty of room" at Salon for left-wing advocacy of its own views, and the most recent Soros-funded attacks on Judge Boyle fall squarely in this camp.

LARS H. LIEBELER
Washington, D.C.

Boyle's Response Letter

You can find the pdf version here. (Hat Tip: Andrew at ConfirmThem)

Here is the body of the letter from Judge Boyle:

Dear Senators Frist and Specter:

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.

Yours sincerely,
Terrence W. Boyle

New Press Release From Third Branch Conference

THIRD BRANCH CALLS ON SENATE TO DO MORE ON JUDGES

Boyle Responds to Frist/Specter; Time is Now to Confirm Respected Judge

Washington, D.C. - The Third Branch Conference, a coalition of grasstops leaders nationwide working to improve the federal courts, today exhorted Senate Republican leaders to do more on judges before their lenghty August recess.

The call comes now that Judge Terrence Boyle responded to a letter sent less than two weeks ago by Senators Frist and Specter.

In the 109th Congress so far, the Senate has confirmed only 46 judges. By comparison, the 107th confirmed 100 under Democrat control, the 108th confirmed 104. In the 103rd Congress, when the Senate last confirmed two Supreme Court justices (Breyer and Ginsburg), Democratrs also confirmed 127 other Clinton judges.

"This is not apples to oranges, " said Manuel Miranda, chaiman of the Third Branch Conference. "Effort is effort. This Congress has so far taken fewer votes on judicial confirmations than any time since the first two years of the Reagan administration. It is the least accomplished Senate in 25 years. It is no wonder that the White House has trouble filling seats, with a Senate like this."

"One solid circuit court confirmation this year is not an accomplishment," said Miranda, former nominations counsel to Majority Leader Bill Frist. "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."

Boyle is presently the longest waiting judicial nominee in history nominated in May 2001 and on the Senate floor for over one year, Myers has been filibustered for two years, Haynes is nearing three years in the Senate.

"Today 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," said Miranda. "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."

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