Friday, November 11, 2005

Judge Alito's No Recuse Excuse

One of the big questions circling Supreme Court nominee Samuel Alito, Jr. early on in his confirmation process is the questions of whether or not he should have recused himself from a 2002 case involving the Vanguard group.

From Mojo Blog:

In 2002, Judge Samuel L. Alito Jr., who owned $390,000 in Vanguard mutual funds, ruled in favor of Vanguard in a case involving a Massachusetts woman who was trying to regain the assets of her late husband's IRA's. The funds were frozen by Vanguard following a court ruling in favor of the husband's business partner.


It turns out that in 1990, when Alito was seeking Senate approval for his judgeship on the appeals court, he told members of the Senate that he would recuse himself from any cases involving Vanguard.

This is exactly the sort of issue that concerns me with Judge Alito and is a brilliant example illustrating where Alito's judicial philosophy leads. Issues such as abortion and gay marriage are very easy for advocacy groups to latch onto for judicial confirmation battles. They are easy to understand and articulate, plus they carry a heavy load of ideological conflict with them.

However, issues over things such as business ethics and the rights of consumers verses businesses are areas of the law which are not nearly so glamorous but carry no less a tangible impact on Americans. Alito's decision not to recuse himself was founded on a certain interpretation of his role as an investor in Vanguard's mutual funds.

In a recent meeting with Senator Russ Feingold of Wisconsin, Alito gave conflicting explanations for his behavior in the 2002 case (via the Appleton Post-Crescent):

"On the one hand he's admitting that he shouldn't have done it and that he took steps to correct it after the fact," said Feingold. "In other answers there's a sense that he didn't even know that there was a problem."

Feingold said Alito would be given ample opportunity to clarify his position. "I need to hear more about that and will certainly give him a full chance to do that," he said.

Feingold, as a Senator on the judiciary committee, is right in his qualification that Alito be given the chance to more fully explain himself in the confirmation hearings. Senator Feingold was one of a very few Senators that actually seemed interested in vetting John Roberts, rather than granting him the coronation most Senators felt he was due. This issue raises some serious questions, however, not the least of which is concerning Alito's personal integrity.

He seems to have clearly broken his word. His original promise to recuse himself from any Vanguard cases, made during his 1990 confirmation hearing for the appellate court seat he currently holds, did not stipulate any difference between direct ownership in the company or ownership in a Vanguard mutual fund. To draw that distinction now seems a terribly fine splitting of hairs that really doesn't excuse a possible conflict of interest. As an owner of any Vanguard mutual funds, Alito had a vested interest in the company's financial performance and thus should not have been hearing a case where Vanguard's fiscal interests were impacted.

The ruling itself also brings into focus some of Alito's beliefs about the balance of power between business interests and consumers. It seems likely that any judicial philosophy with which George W. Bush would find himself in agreement is going to contain some formulation of "free market" doctrine. Judge Alito's refusal to recuse himself seems to indicate a belief that conflicting business interests need not enter the framework of a consumer grievance. This contributes towards the "free market" belief in a relaxed regulatory atmosphere. Why recuse oneself for a conflict of interest when such conflicts should be beyond the consideration of the courts in the first place?

All the ruckus surrounding the Roe vs. Wade decision is actually serving the interests of Bush and Alito by obscuring many of the other issues that a judge's judicial philosophy could impact. The Supreme Court hears very few cases on ideologically-charged social issues but hears many on business regulations and commerce. And that's where the Alito nomination really has teeth.

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