Exclusive Alito's Opponents Hyped Fake Issues

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.