In reporting on Supreme Court nominee Samuel A. Alito Jr.'s refusal to recuse himself in two cases involving companies in which he owned stock, The New York Times reported without challenge Alito's assertion that his pledge to recuse himself had been limited to a certain period of time after his confirmation. In fact, when Alito pledged under oath that he would recuse himself from cases involving certain companies, he did not qualify the pledge in any way or even suggest that it was time-limited.
A January 3 New York Times article by reporter David D. Kirkpatrick provided details on Supreme Court nominee Samuel A. Alito Jr.'s refusal to recuse himself in two cases involving companies in which he owned stock: mutual fund operator Vanguard Group and brokerage firm Smith Barney Inc. While Kirkpatrick noted that Alito had pledged during his 1990 appellate court confirmation hearings to recuse himself from cases involving those companies and others in which he had an interest, Kirkpatrick simply reported without challenge Alito's assertion that the pledge had been limited to a certain period of time after his confirmation. In fact, when Alito pledged under oath to the Senate Judiciary Committee that he would recuse himself from cases involving Vanguard and Smith Barney, he did not qualify the pledge in any way or even suggest that it was time-limited.
Moreover, Kirkpatrick himself has previously noted an apparent inconsistency in Alito's position regarding his obligation to recuse himself from Vanguard cases. Kirkpatrick reported on December 1 that Alito's Supreme Court nomination questionnaire revealed that outside of a 2002 Vanguard case that Alito participated in, Alito has continued to recuse himself from cases involving Vanguard "throughout his time on the court."
In the January 3 article, which focused on a proposed advertisement by Alito opponents highlighting the recusal issue, Kirkpatrick uncritically repeated Alito's claim that his 1990 written testimony before the Senate Judiciary Committee applied to a limited timeframe:
People involved in the liberal coalition, which includes People for the American Way, the legal group Alliance for Justice, the A.F.L.-C.I.O., the N.A.A.C.P., the Sierra Club and abortion rights groups, said it planned to run new commercials, beginning this week with radio and television advertisements in selected states intended to undercut Judge Alito's credibility.
These people said the first advertisements would focus on occasional lapses from a pledge Judge Alito made at the 1990 hearings for his confirmation to the appeals court that he would recuse himself from cases involving the companies that managed his mutual fund investments, Vanguard and Smith Barney.
Legal ethics experts say judges are not obliged to recuse themselves in such cases. There are very few known lapses during Judge Alito's 15 years on the United States Court of Appeals for the Third Circuit. Judge Alito has said the lapses were inadvertent and occurred long after the initial period covered by his pledge. But the liberal groups plan to highlight differences in his explanations about the cases over time.
Yet Alito made no mention of a timeframe in the 1990 questionnaire he submitted to the Senate during his confirmation, in which he made the unqualified promise to recuse himself from all cases involving companies tied to his "financial interests," such as Vanguard and Smith Barney:
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.
As The Washington Post reported on November 1, 2005, Alito appeared to have violated his pledge in 2002 by participating in a case involving the Vanguard Group in which Shantee Maharaj, widow of a holder of Vanguard funds, charged, according to the Post, "that the company had improperly seized some private accounts and blocked the owner's widow from obtaining the funds they contained." Sitting on a three-judge panel, Alito ruled in favor of Vanguard, and the complaint was dismissed. After Maharaj complained that Alito's participation in the decision was unlawful, Alito's decision was withdrawn by Anthony Joseph Scirica, the chief administrative judge for the 3rd U.S. Circuit Court of Appeals. Alito also had ruled on a 1996 case involving Smith Barney, as the Post noted on November 10, 2005.
In the January 3 article, Kirkpatrick also ignored other evidence that calls Alito's defense into question. While Kirkpatrick noted that "liberal groups plan to highlight differences in his [Alito's] explanations about the cases over time," he failed to identify the extent of those differences or explain that they have also been cause for concern for ethics experts. In addition to claiming the pledge covered only his "initial service" on the bench, Alito also has said that he later violated the pledge because it was "unduly restrictive," as Bloomberg reported on November 11, 2005. Further, the White House initially blamed Alito's involvement in the Vanguard case on a computer glitch, as the Post reported on November 1:
White House spokeswoman Dana Perino said Alito had become involved in the case because a "computer screening program" at the 3rd Circuit had failed to pick up the potential conflict. She said that "as soon as the matter was brought to [Alito's] attention" by Maharaj's motion, he wrote a letter to Scirica requesting that the ruling be withdrawn and the case presented to a new panel.
As the Associated Press reported on November 25, 2005, New York University law school professor Stephen Gillers said Alito's recusal "explanation causes greater concern than the problem." And Doug Kendall, executive director of the group Community Rights Counsel, said Alito's response was "inconsistent and somewhat incoherent."
Even Kirkpatrick himself has previously pointed to evidence that calls into question Alito's claim that the pledge applied to a limited timeframe. In a December 1 Times article, Kirkpatrick noted that Alito's decision to rule on the 2002 Vanguard case was an apparent exception, because Alito's answers in the Senate questionnaire for his current confirmation "indicate that he continued to recuse himself from cases involving Vanguard throughout his time on the court":
In 2002, Judge Alito sat in judgment of a case involving Vanguard and stepped aside only after a party to the case objected; Democrats have questioned the lapse, which he called an accident.
He later sent Senator Specter a letter arguing that his initial pledge applied to only his first years on the court and noting that ethics guidelines did not require him to recuse himself. His answers to his questionnaire, however, indicate that he continued to recuse himself from cases involving Vanguard throughout his time on the court.
In the January 3 article, Kirkpatrick also wrote that "[l]egal ethics experts say judges are not obliged to recuse themselves in such cases." But not all legal ethics experts hold this view. For example, a November 1, 2005, Post article noted that retired Northeastern University law professor John G.S. Flym, who helped prepare the court motion for the plaintiff in the Vanguard case, said that "the law was quite clear" that "[i]t was improper for him [Alito] to participate in the decision." A November 3, 2005, Boston Globe article that examined the issue in greater detail noted that after the plaintiff in the case discovered Alito's Vanguard holdings, "she contacted Flym at Northeastern, and he agreed to assist her in a motion that alleged that Alito's participation was unlawful under judicial ethics rules." The November 1 Post article also noted that George Washington University constitutional law professor Mary Cheh agreed that judges should recuse themselves in situations like Alito's:
George Washington University constitutional law professor Mary Cheh said she agreed that "even though these are broadly held funds ... if you are aware of the holdings, you should recuse yourself because you stand to benefit one way or the other. That would be the ordinary course" for a judge with such investments.
In a November 10, 2005, article, the Times reported that "[t]wo experts in judicial ethics, whose views were solicited by Senator Arlen Specter, the Pennsylvania Republican who heads the Judiciary Committee, have said Judge Alito had no obligation to recuse himself from the Vanguard case." The report noted that one of the experts, University of Pennsylvania law school professor Geoffrey C. Hazard Jr., "said he has known Judge Alito since the judge was a law student." But even Hazard, who strongly supports Alito's confirmation, conceded that Alito's 1990 testimony is "a basis for mild criticism," given that Alito has since engaged in conduct that is apparently at odds with it.