Posted on 01/16/2006 3:45:21 PM PST by Aussie Dasher
Judge Samuel Alito’s appearance before the Senate Judiciary Committee last week confirmed his integrity and character. Patiently and clearly answering senators’ questions of all kinds, hour after hour, he also proved his judicial temperament. Now, as their hopes of defeating this nomination diminish, Judge Alito’s opponents are left trying to hype fake issues.
One of these attacks focuses on Judge Alito’s initial failure to recuse himself in the so-called Vanguard case. It is time to set the record straight.
Preserving both justice and judicial independence requires that judges avoid conflicts of interest. To that end, federal law requires that a judge step aside from “any proceeding in which his impartiality might reasonably be questioned,” including when he has a financial interest in the subject matter or is a party to a case. The law, however, states that ownership in a “mutual or common investment fund” does not qualify as a financial interest.
When he joined the Appeals Court in 1990, Judge Alito owned shares in several Vanguard mutual funds. In his Judiciary Committee questionnaire at that time, he said he would avoid “potential conflicts-of-interest during [his] initial service” by disqualifying himself from any cases involving “the Vanguard companies.”
In 2002, the appeals court, including Judge Alito, unanimously ruled against a widow in a dispute over control of Vanguard mutual fund shares in her late husband’s estate. She later claimed that Judge Alito should have recused himself because of his investment in Vanguard mutual funds. Judge Alito agreed, asking that the initial decision be vacated and that a new panel of judges reconsider the case. The new panel came to the same unanimous conclusion and again upheld the trial court decision against her.
This situation raises both a legal/ethical and a political question. The legal/ethical question is whether Judge Alito’s participation in this case was improper. The answer is unequivocally no. Shares in Vanguard mutual funds are not an ownership interest in the Vanguard company, and the outcome of the case could not have affected the value of his investment. The fact that Judge Alito recused himself anyway, going beyond what he was legally or ethically required to do, should be applauded, not attacked. But Judge Alito went even further than that, creating an entirely new system for his own office to flag potential conflicts.
Several prominent judicial ethics experts have concluded that Judge Alito committed no ethical breach and handled the situation properly. The American Bar Association specifically examined the Vanguard situation before unanimously giving Judge Alito its highest well-qualified rating. Integrity is one of the ABA’s three rating criteria.
Unfortunately, the merits of a situation can become judicial confirmation roadkill, which brings us to the political question raised by this Vanguard case. Grasping at straws, Democratic senators and left-wing groups charge that Judge Alito’s initial failure to recuse himself from the 2002 case broke the so-called “promise” in his 1990 questionnaire.
Suppose for a moment that, immediately upon taking judicial office, Judge Alito sold his Vanguard mutual fund shares and never purchased another. Would these critics still have demanded that Judge Alito recuse himself forever from any case involving Vanguard because his 1990 questionnaire statement was framed in perpetual terms? Of course not. That statement cannot have the kind of rigidly literal meaning these opponents demand.
Instead, Judge Alito said he would do what every judge must do, namely, recuse himself whenever he is legally or ethically required to do so. Prof. Thomas Morgan, co-author of the most widely read legal ethics textbook in America, agrees. He examined this situation and concluded that Judge Alito’s statement cannot be seen to cover “more than the law governing disqualification requires.” Since the law did not require Judge Alito’s recusal in the Vanguard case, his responsibility to avoid conflicts of interest was fully satisfied.
No one has identified even one of Judge Alito’s nearly 5,000 cases in which he was required to recuse himself but failed to do so. Since the facts so clearly demonstrate Judge Alito’s integrity, character, and fairness, why do his opponents continue to beat this dead horse? Exploiting this situation is a desperate political stunt, no doubt at the behest of left-wing groups, a gambit the Senate should reject.
I don't suppose she mentioned that Judge Becker's wife held Vanguard, too, and he didn't recuse himself, huh?
You forgot the "sarcasm tag".
from the January 17, 2006 edition
For Senate Democrats, a last stand on Alito
By Gail Russell Chaddock | Staff writer of The Christian Science Monitor
WASHINGTON – After an unflappable 18 hours before a panel of 18 senators last week, Judge Samuel Alito is all but assured confirmation in the full Senate - just not by Friday.
At 11 a.m. Tuesday, Senate Democrats are expected to delay the vote, despite an agreement with the panel's chairman, Sen. Arlen Specter (R) of Pennsylvania, to move Judge Alito's nomination toward a final Senate vote by Jan. 20.
The delay would give Democrats a last chance to discuss strategy on this vote face to face, to sift through Alito's response to written questions, to revisit hearing transcripts, and to do one last nose count on whether there is support for a filibuster to block the vote.
"It is a momentous decision, and they need more time to think about it," says Carl Tobias, a constitutional law professor at the University of Richmond Law School.
It also gives groups opposing the nomination another week - and the Jan. 23 anniversary of the 1973 Roe. v. Wade decision, expected to draw hundreds of thousands to the nation's capital on the eve of the new vote - around which to organize.
"Nothing is over until it's over," says Marcia Greenberger, copresident and founder of the National Women's Law Center, which opposes Judge Alito. "What's really important is to let the dust settle a little and to let the implications of these hearings settle in."
Anti-Alito activists say they can pick up another million signatures in the run-up to a delayed vote, in a bid to focus senators' attention on the threat they say he poses to abortion rights, protection from discrimination on the job, and curbs on the abuse of executive power.
"Did I hear FNC report that Specter caved again and the vote on Alito won't be this week but will be on the 27th instead?"
One thing for sure, the dems cannot under any valid circumstances, claim they weren't given time to knock Alito out!!
I think I heard FNC say the vote has been moved to the 27th. So much for Frist's threat, huh?
The two claimed and one was awarded the shares.
IT HAD NOTHING TO DO WITH THE COMPANY AT ALL BUT WHO WOULD INHERIT.
If indeed that is the case, it was recusing himself after the fact that created the whole flapdoodle. Walking the second mile that way merely sets you up for the bushwhackers.
No, they were listed as co-defendants.
No, they were listed as co-defendants.
The purpose of the case was to have the court tell Vanguard to give the money to particular person. A court cannot give such an order to an entity that isn't party to a proceeding before it.
As a party to the proceedings, Vanguard would have had the option to argue that it should not give the money to the plaintiff, and to introduce evidence to that effect. Had Vanguard sought to do so, Judge Alito's recusal would have been appropriate. From my understanding of the case, though, Vanguard's "case" was basically "Just tell us what to do, Judge, and we'll do it." Vanguard's main concern was that they didn't want to do anything they weren't ordered to do; had they given the money to one party without a court order and the other party could show it should have gotten the money, they could have gone after Vanguard. But if Vanguard was ordered to give the money to the first party, it could not be sued for having done so.
The more the Democrats lie about Alito, the more the public supports him.
Hey, I'm from Pennsylvania, and I want you to know that Sen. Specter is a MOSTLY useless POS. Once every blue moon he does something surprisingly "non-POS-ish". Of course, he apologizes profusely afterwards and then refers to Scottish law.....
LOL! In Aussie parlance, Specter is "a bloody old goose"!
As the hearing was going on last week I heard that using the procedural rules of the Senate the Dems could delay the committe vote a week and there was nothing the Republicans could do about it. After that the Republicans can (and better) push things forward and the Dems can't do anything about it.
Then Frist shouldn't have issued his press release which threatened to withold vacation time unless the vote was held this week. It makes him look silly.
The person appealed on the grounds that the Judge had Vanguard stock so he felt it was best to have the case retried by another panel. The second panel voted unanimously in the same manner that Judge Alito had decided.
OBSTRUCT OBSTRUCT OBSTRUCT.
I think Frist is doing what he said he would do:
http://www.freerepublic.com/focus/f-news/1557863/posts
He said the Senate will start work the day after the committee reports out and cancel recess for the week of January 23rd if they don't get a vote by the 20th.
I'm assuming the full Senate will start work on the 25th after the commitee vote on the 24th with a final vote before the end of the week.
Personally I hope the Dems filibuster and the Republicans get rid of it and take that obstructionist tool out of the Dems hands now. Renominate Estrada and get him and up or down vote. Maybe dreaming on that one...
You didn't read the whole thing if you think Frist is doing what he said he'd do.
This:
If Democrats delay final action past January 20th, he will cancel the recess for the week of January 23rd which he had previously scheduled with the knowledge of Minority Leader Harry Reid (D-NV).
Well, they delayed final actin past 1/20, and he's doing nothing.
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