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November 10, 2005
Alito's Conflict Of Disinterest And The Blogocon That Settled Nothing

For the past two days, the Samuel Alito nomination to the Supreme Court has made small news by actually finding a controversy that involves a factual issue. During his confirmation to the appellate court in 1990, Alito apparently promised to avoid presiding over cases involving the brokerage house Smith Barney, the investment firm Vanguard, and his sister's law firm because of his personal and financial connections to each. Years later, Alito failed to recuse himself from a case involving the first two parties, and Democrats now want to argue that Alito cannot be trusted now with a seat on the Supreme Court.

Based on the urging of Judiciary Committee chair Arlen Specter, Alito responded in writing to the committee:

Alito said a 1990 questionnaire he filled out for the panel covered his plans for "initial service" as a judge on the 3rd U.S. Circuit Court of Appeals.

"I respectfully submit that it was not inconsistent with my questionnaire response for me to participate in two isolated cases seven and 13 years later, respectively," he wrote. ... When he listed the companies in the 1990 questionnaire, "my intention was to state that I would never knowingly hear a case where a conflict of interest existed. ... As my service continued, I realized that I had been unduly restrictive," Alito said.

The White House and the GOP held a blogger con this afternoon, and fortunately I scheduled my lunch out late enough to join in. I took some notes, but Professor Bainbridge and Decision '08 has them laid out better. In my opinion, the conference call went long on invective and short on useful information. The organizers didn't give us much background on the cases themselves, nor did they tell us why Alito's participation did not constitute a conflict of interest. As a presentation, it lacked substance -- which is why most of the questions asked covered other subjects.

For my part, I don't find the argument at all compelling. Mutual fund management, as a number of arguments attest, does not equal a material interest in the broker who arranged the sale. I wish I could read the questionnaire itself to see the context in which Alito's alleged promise of recusal came; rarely do jurists promise to recuse in absolute terms for a hypothetical situation. I agree that issues of recusal in specific cases such as Vanguard should get discussed and debated in the Judiciary Committee with a nominee as it goes to judicial judgment and temperament. The bottom line for me is whether Alito has a pattern of operating from a conflict of interest and if any evidence shows that these skew his court rulings. Clearly in this instance, as his rulings were upheld after his later recusal, this conflict did not.

In fact, no one seriously argues that it did. Even if one concludes that Alito should have recused himself from Vanguard on the basis of his earlier promise if not the requirements of the law, he reached the correct rulings as a matter of law, rulings later upheld on a rehearing by other jurists. "Ruth Bader Ginsburg may have violated a federal law 21 times since 1995," the AP reported in 1995 regarding conflicts of interest over her husband's money -- and we all helped make her a Supreme Court jutice regardless. Her conflicts turned out to be inadvertent and harmless, which is the worst that can be said for Alito's as well.

As scandals go .... bo--ring.

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Posted by Ed Morrissey at November 10, 2005 9:40 PM

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» Blogger Conference Call, Ed Gillespie from Decision '08
Today the RNC, at the instigation, no doubt, of the great Patrick Ruffini, held another blogger conference call, this time with Ed Gillespie, ’sherpa’ to Supreme Court nominee Samuel Alito. Gillespie is a former RNC Chairman himself, as we... [Read More]

Tracked on November 10, 2005 11:58 PM


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