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.
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.
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.
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 email@example.com is publisher at Common Courage Press in Monroe, Maine.