Partisan politics aside, Alito's inability to follow his own ethical standards disqualifies him from sitting on the nation's highest court.
Answering a question during his U.S. Senate confirmation hearings for the Third Circuit Court of Appeals in 1990, Alito promised in writing that he would "disqualify" himself from cases involving companies he had a financial interest in, naming Smith Barney and Vanguard mutual funds. He broke that promise in 1996, sitting in judgment of a case involving Smith Barney and then again in 2002 in Monga v. Ottenberg, involving Vanguard. In neither case did he initiate the disclosure of his investments in the companies.
In his defense, Judge Alito reportedly stated that a computer "glitch" mistakenly caused the 2002 case to be assigned to him. Regarding his written answer in 1990, he now asserts he "realized that I had been unduly restrictive on my 1990 questionnaire." Others argue that promises to the Senate do not constitute legal obligations. Most importantly, in the case involving Vanguard, Alito did eventually recuse himself, saying "I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares. Nor do I believe that I am a party" to the lawsuit. "However, it has always been my personal practice to recuse in any case in which any possible question might arise. Under the circumstances here, I am voluntarily recusing in this case."
Under scrutiny, his excuses collapse. Added to his statement should be that recusal is his personal practice "only when caught." He recused himself after the plaintiff exposed his holdings, reported to be between $390,000 and just under $1 million, more than half his investments. As his 1990 promise clearly implies, recusal must be initiated by judges themselves, and not conditional on investigations by plaintiffs.
Is Alito right that he was originally too restrictive? No. The code of judicial conduct does specify that ownership of mutual funds is not grounds for recusal unless they are structured to convey an ownership share. Vanguard is clear on this point: Vanguard shareholders own the Vanguard fund.
A Wall Street Journal editorial argues, "If such a standard did hold, we'd add, then only judges who kept their savings in mattresses or sock drawers would be deemed worthy of confirmation to the High Court." This is silly such a standard doesn't restrict where judges put their money, only that they must recuse themselves from cases involving companies they own, so that these are heard by others who don't have those conflicts. The Journal also argues that no harm was done because Monga was without merit. But merit is irrelevant; judges must not decide it's okay to hear a case on the grounds that they've already deemed the plaintiff is wrong. To do so is to pre-judge the case.
Some have been quick to excuse Alito's choice as an inattentive lapse, proposing he should just say "oops." Everyone is entitled to make a mistake, but not on an issue so central as recusal and not for a lifetime appointment to the most powerful court in the land. Regardless, Alito admits no mistake. To do so now under pressure is too late.
The new computer glitch excuse is damning. If he is now claiming he should not have been given the case in the first place, then he should have recused himself promptly. This waffling reveals a desire to deflect attention from conflicting earlier pronouncements that first he would recuse, but then he didn't.
This is not a question of ideology. His qualifications meet the highest standards, but his ethics fall short. Judge Alito is not Supreme Court timber.
Originally published in Maine's Bangor Daily
Greg Bates firstname.lastname@example.org is publisher at Common Courage Press in Monroe, Maine.