Partisan Ethics

Published May 17, 2006

National Review Online

After the ridiculous ethics allegations that the Left leveled against John Roberts and Sam Alito, you might think that sensible observers would be suitably skeptical of Salon’s recent allegations against Fourth Circuit nominee Terrence Boyle. Indeed, Boyle’s supporters have already offered a robust response to those allegations. Because the full facts are not yet publicly available, I will not parse the charges and rebuttals here. But some broader perspective might place this matter in useful context.

Consider these three hypotheticals:

(A) Judge A is a state supreme-court justice who faces a hotly contested retention election. Pending before his court is a case in which an organization has submitted an amicus brief. While the case is pending and in the midst of the battle over Judge A’s retention election, that organization creates an annual award named after Judge A to be given to a person who, in the view of that organization, has made outstanding contributions to the law. Judge A presents the first annual Judge A award at the organization’s annual convention. Several months later, in dissent, Judge A adopts the position that the organization advocated in its amicus brief.

(B) Judge B is a federal district judge in a personal-injury action against cigarette manufacturers. A court of appeals takes what it calls the “extraordinary” action of removing him from a case because it concludes that a ruling of his amounts to a “judicial usurpation of power,” is contrary to our “common law tradition,” ignores “fundamental concepts of due process,” eviscerates the defendants’ right of appeal, and destroys any appearance of impartiality. Unchastened by this correction, Judge B personally accepts from an anti-smoking group an award for his ruling: the “C. Everett Koop Award for significant achievement toward creating a smokefree society.”

(C) To a lesser extent than Justice Ginsburg did while sitting on the Supreme Court, Judge C, as a federal district judge, takes part in a small number of cases that involve parties in which he has a very minor stock holding. It is clear to all fair-minded observers that his participation was inadvertent, that the cases could not possibly have affected the value of his minor stock holdings, and that his decisions in those cases were rendered impartially.

Which of the hypotheticals raises a serious ethics issue that might call into question a judicial candidate’s fitness for the federal court of appeals? (You may select more than one.)

The correct answer, I would submit, is A and B.

A, as it turns out, is straight from the record of Rosemary Barkett, the former justice of the Florida supreme court who was appointed to the Eleventh Circuit by President Clinton in 1994. (A group of trial lawyers calling itself the Academy of Florida Trial Lawyers submitted an amicus brief in the case of University of Miami v. Echarte and created the Rosemary Barkett Award while that case was pending and during Barkett’s controversial 1992 retention election.) Even apart from this ethical lapse, Barkett had a record as a Florida justice that read like a parody of liberal judicial activism. But Senate Democrats (then in the majority) overwhelmingly approved her nomination.

B is Lee Sarokin, whom Clinton appointed to the Third Circuit in 1994. In addition to his highly dubious ethical judgment, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, he described himself as a “flaming liberal” as a judge. The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” And a broad range of police and victim’s groups announced their opposition to his nomination. But Senate Democrats overwhelmingly approved his nomination.

C, I’m willing to bet, will turn out to be Judge Boyle, once the ethics allegations against him have been carefully examined. If so, any minor technical violations should be regarded, as Ginsburg’s similar incidents were, as innocent mistakes that have no bearing on his fitness to serve on the Fourth Circuit.

Democrats have displayed no real interest in judicial ethics but instead seek to use ethics charges as a partisan club against President Bush’s judicial nominees. Yet as soon as Salon’s allegations surfaced, a number of Senate Republicans, showing a disturbing penchant for abject surrender, seemed all too ready to abandon Judge Boyle’s nomination. In the absence of any genuinely serious ethics issues, any Republicans who run from the Boyle fight will demonstrate their own lack of fitness for office.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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