November 11, 2005
Alito's 1990 Senate questionnaire
An emerging issue in the Alito Supreme Court nomination has been his participation in cases involving parties such as Vanguard (in which he had invested a substantial amount of money) and his sister's law firm. The issue is not so much whether he was legally required to recuse himself from these cases - he probably wasn't, though the peculiar ownership structure of Vanguard (in which investors are also part-owners, but of which Alito may not have been aware) complicates things. The real issue, rather, is whether he failed to live up to what he told the Senate.
So let's have a look at the Senate questionnaire. The whole thing is here (pdf) - scroll down to page 29 for the beginning of Alito's questionnaire, and to page 43 for the page on conflicts of interest. And here, in full, is the relevant question and answer:
Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts-of-interest during your initial service in the position to which you have been nominated.
I would adhere to the applicable standards for disqualifications, including Canon 3C of the Code of Judicial Conduct, 18 U.S.C. 207, and related regulations. I would adhere to Canon 5 to minimize the risk of future conflicts.
I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings & Loan of Rochester, New York.
I would disqualify myself from any case involving my sister's law firm, Carpenter, Bennett & Morrissey, of Newark, New Jersey.
I would disqualify myself from any case in which I participated or that was under my supervision in the United States Attorney's Office or in any prior position.
So there you have it. He does appear to have told the Senate in a sworn statement that he would disqualify himself from certain categories of cases, some of which he later heard. For him, or the White House, to try to explain this away as a computer glitch is really, really stupid - you don't need a computer to tell you that a case involves Vanguard when it's got "Vanguard" all over the title page.
Apparently realizing this, the "computer glitch" explanation is no longer being floated. Instead, the AP reports, Alito has today sent a letter to Senate Judiciary Committee chairman Arlen Specter (R-Pa.) in which Alito says that his promise not to sit on any cases involving Vanguard was "unduly restrictive," and that his answers regarding Vanguard, Smith Barney, and his sister's firm applied only to his "initial service" on the bench, not to cases that arose years after his appointment. He concludes that it was "not inconsistent" with his questionnaire responses for him to hear the Vanguard and other cases that have been in the press lately.
Weak, if you ask me. A fair reading of the questionnaire is that Alito's promise regarding Vanguard was unequivocal and not time-limited. If he had later liquidated his investment in Vanguard, one could reasonably say that the promise had become stale - but, as has been widely reported, that was not the case, as Alito had several hundred thousand dollars invested with Vanguard at the time he heard the case. So there is no reason why, if he was "initially" going to avoid all Vanguard cases, he shouldn't have continued to avoid them as long as he had substantial funds invested with Vanguard (and remember - he did ultimately recuse himself from that case after a litigant challenged his participation). Furthermore, you simply can't say something to the Senate in a sworn document and then later change your mind.
Far better would be for Alito to admit that he made a mistake in hearing the Vanguard case, while noting that every other judge who heard the case agreed with his view of it. All today's attempted explanation does is guarantee that the issue will continue to dog him.
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Alito's characterization seems correct, but perhaps overly technical. The question asks two things: 1) What procedures will you follow, and 2) what categories are likely to present potential conflicts-of-interest during initial service.
The first paragraph of his answer addresses the first question, the next three paragraphs each address a different category regarding the second question, which by its terms was limited to "initial service".
Perhaps a better approach would be to evaluate how the Vanguard cases might have affected his finances, based on how they turned out vs how they would probably have gone with a different ruling. Would they likely have cost him more than a few hundred dollars? I don't mean to minimize the importance of both technical and substantive compliance, but as a political matter (which the appointment is) that's where the real "impropriety" would lie.
Posted by: Shelby | Nov 11, 2005 2:10:55 PM
Shelby, it's not obvious to me that Alito's 1st paragraph addresses part 1 of the question, while the latter 3 paragraphs are by their terms limited to part 2 - those 3 pararaphs could apply to both. Furthermore, if a substantial investment in Vanguard was enough to make recusal appropriate "initially," why wouldn't a similar (or larger) investment continue to make recusal appropriate? Maybe Alito didn't have to agree to recuse from Vanguard cases at all. The point is, he did, and then he didn't do it.
Posted by: David | Nov 11, 2005 2:49:53 PM
Well, David, the questionnaire asked about procedures, then about categories. The categories question limited itself to "initially," it did not address longer-term matters. There is therefore no reason to read the response as answering anything about categories later than "initially."
I suppose one could interpret the latter 3 paragraphs as explaining how he "will resolve any potential conflict of interest", but the question is general and the answers are specific. That, and the order in which the paragraphs appear, support my reading of which paragraphs respond to which part of the question.
My answer here does not deal with whether recusal would later be appropriate. Judge Alito's first paragraph in response outlines how he will handle later recusal issues. I also realize this is a technical response to your question, dealing just with what Alito said on the questionnaire. I do not know whether he in fact acted appropriately , setting the questionnaire aside. I think he complied with what he stated there, but that doesn't tell us whether his later decision not to recuse himself was in fact ethical. Nor does it tell us whether he actually adhered to the judicial canons that he specified. I don't know, and don't care to invest the time in learning that much more about this controversy.
Posted by: Shelby | Nov 11, 2005 6:38:55 PM
Your reading is not implausible. Neither is mine. However, because the first sentence of the Vanguard paragraph specifically refers to "conflicts of interest relating to my financial interests," it seems just as reasonable to read that paragraph as a partial response to the question's instruction to explain how he would resolve "any potential conflict of interest" as to read it as responsive to the question's second prong.
In other words, Alito cannot get himself out of this by claiming that he clearly told the Senate that he'd only recuse himself from Vanguard cases for some (unspecified) "initial" length of time. His answer is not clear, and he's now stuck with the consequences of his ambiguous response. Let's hope he's learned something about precise draftsmanship in the 15 years he's been on the bench.
Posted by: David | Nov 12, 2005 1:51:41 PM
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