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Senators Snowe and Collins Must Work to Defeat Alito’s Supreme Court Nomination

By Greg Bates  Posted by Rob Kall (about the submitter)       (Page 1 of 1 pages)     Permalink

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The positions of Senators Olympia Snowe and Susan Collins on Judge Samuel Alito 's nomination to the Supreme Court will indelibly define their records not on politics but on ethics. As two members of the so-called gang of 14 that can prevent filibusters of judicial nominees, they have an outsized power to affect the outcome, and a special obligation to their country. They should reject his nomination.

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.

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While a promise to the Senate is not legally binding, if written promises on such critical questions of recusal can later be discarded, then nominees can just tell Senators what they want to hear, turning confirmation hearings into charades.
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.

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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 gbates@commoncouragepress.com is publisher at Common Courage Press in Monroe, Maine.

 

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Rob Kall is an award winning journalist, inventor, software architect, connector and visionary. His work and his writing have been featured in the New York Times, the Wall Street Journal, CNN, ABC, the HuffingtonPost, Success, Discover and other media. He's given talks and workshops to Fortune 500 execs and national medical and psychological organizations, and pioneered first-of-their-kind conferences in Positive Psychology, Brain Science and Story. He hosts some of the world's smartest, most interesting and powerful people on his Bottom Up Radio Show, and founded and publishes one of the top Google- ranked progressive news and opinion sites, OpEdNews.com

more detailed bio: 

Rob Kall has spent his adult life as an awakener and empowerer-- first in the field of biofeedback, inventing products, developing software and a music recording label, MuPsych, within the company he founded in 1978-- Futurehealth, and founding, organizing and running 3 conferences: Winter Brain, on Neurofeedback and consciousness, Optimal Functioning and Positive Psychology (a pioneer in the field of Positive Psychology, first presenting workshops on it in 1985) and Storycon Summit Meeting on the Art Science and Application of Story-- each the first of their kind.  Then, when he found the process of raising people's consciousness and empowering them to take more control of their lives  one person at a time was too slow, he founded Opednews.com-- which has been the top search result on Google for the terms liberal news and progressive opinion for several years. Rob began his Bottom-up Radio show, broadcast on WNJC 1360 AM to Metro Philly, also available on iTunes, covering the transition of our culture, business and world from predominantly Top-down (hierarchical, centralized, authoritarian, patriarchal, big)  to bottom-up (egalitarian, local, interdependent, grassroots, archetypal feminine and small.) Recent long-term projects include a book, Bottom-up-- The Connection Revolution, debillionairizing the planet and the Psychopathy Defense and Optimization Project. 

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