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.
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?
I haven't heard that, but it wouldn't surprise me. Specter is a useless POS...
This article seems to suggest, which makes perfect sense, that Alito was not required to recuse himself in Vanguard cases that did not require his recusal.
In other words, Alito's agreement to recuse himself in
Vanguard cases could only reasonably be expected to cover those Vanguard cases in which a recusal was necessary.
I was half listening as I prepared dinner so I am hoping that I heard it wrong.
I dare you to say that again...differently :)
Not by law, anyway. He did promise to the Judiciary Committee, however, that he would do so. It is vaguely disturbing that he ignored that promise - but it is not a violation of judicial ethical rules.
"....why do his opponents continue to beat this dead horse?"
'cuz no horse is too dead to beat.
Sorry - I just couldn't resist
Apparently you heard correctly. I want to know where the Tower of Jelly Frist is since he said last week that he would cancel the scheduled recess week if Alito's vote did not occur on the twentieth , as scheduled?
:>)
If your employer says to you "I'll pay your expenses." then he probably means that he'll pay your legitimate expenses relating to your job.
He probably doesn't mean that he'll pay your kid's way through college.
He can only reasonably be expected to cover those expenses in which payment is necessary.
A mutual fund invests in the stock of many different companies. Should a judge who owns shares in a mutual fund have to recuse himself if a case comes before his court involving any of the companies whose stock is owned by the mutual fund?
Frist is useless. Worse than useless. If I heard correctly and the vote was delayed a week, and Frist lets them all go on vacation as planned, he's an even bigger arse than I thought he was.
At worst it was an oversight.
But, because he wasn't required to recuse himself by virtue of an interest in that particular case, then his pledge not to hear Vanguard cases can be taken only to relate to those cases which require him to recuse himself. (See #10)
And, Frist was the loser who allowed Arlen Specter to assume the Chairmanship of the Judiciary Committee!
I don't find anything remotely 'disturbing' about Judge Alito ruling (initially) in this case - it was not a case involving any substantive issue to do with Vanguard's operations, finances, etc. It was to do (so far as it has been described) with a widow fighting over control of her late husband's estate - thus, it involved Vanguard in only the most distant and incidental way, as the shares in question happened to be in Vanguard mutual funds, but if the legal contest had been over her late husband's shares of IBM, Microsoft, etc. judges need not recuse themselves just because they might happen to own stock in those companies.... this sounds (to me, anyway) like a purely private, personal dispute involving the widow and her late husband's estate, and not anything to do with Vanguard per se. Alito taking the later step of recusing himself and seeking a new ruling strikes me as completely unnecessary except in the "CYA" sense of our absurdly litigious society which can allow the most trivial minutia to become a courtroom battle.
After watching those toothless buffoons trying to get the better of Judge Alito, I wonder why so many of us were worried that the hearings might be an insurmountable hurdle for people like Janice Rogers Brown.
I'll never worry again that known conservative judges can't survive a grilling in the Senate.
It isn't caving..He cannot stop them..They only gave their word..and we know what that is worth..The rules allow it.
Frist shouldn't have made his threat then. It makes him look like what he is - ineffective at best.
Two people were fighting over the proceeds from Vanguard. It could have been any company on earth.
The two claimed and one was awarded the shares.
IT HAD NOTHING TO DO WITH THE COMPANY AT ALL BUT WHO WOULD INHERIT.
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