As confirmation hearings approach, NY Times' Kirkpatrick fired off two more misleading Alito reports


The New York Times glossed over and presented one-sided accounts of a recusal issue regarding Supreme Court nominee Samuel A. Alito Jr. in two recent articles about Alito's upcoming confirmation hearings.

Just days after glossing over ethics concerns raised by Supreme Court nominee Samuel A. Alito Jr.'s failure to recuse himself in at least two appellate court cases involving companies in which he had an interest, New York Times reporter David D. Kirkpatrick wrote articles on January 5 and January 6 that presented only one side of the recusal issue -- that of Alito and his supporters -- minimizing, and in some cases, ignoring entirely criticisms and questions raised by Democrats or outside critics.

In either -- or both -- of the articles, Kirkpatrick:

  • Adopted the disputed characterization of a pledge Alito made before the Senate during his 1990 appellate court confirmation hearings -- to recuse himself from certain cases -- as unnecessary under ethics rules and ignored critics' accusations that Alito violated that pledge.
  • Falsely suggested that all legal ethics experts agree that Alito's failure to recuse himself in the cases was "minor."
  • Falsely suggested that Alito had attributed his decision to hear one case solely to an innocent mistake caused by a computer glitch -- one day after noting that Alito has offered "multiple" explanations for his failure to recuse himself.
  • Misleadingly described Alito's "multiple" explanations for not recusing himself as "not contradictory."
  • Left the false impression that, once the computer glitch was brought to Alito's attention, Alito voluntarily -- and independently -- came to the decision to "step[ ] aside" from the case.
  • Uncritically repeated Alito's claim that his recusal pledge was time-limited without noting that Alito never suggested that it was when he initially made it.
  • Injected the qualifier that a statement Alito reportedly made was "attributed" to Alito by Sen. Diane Feinstein (D-CA), after co-authoring a previous report that corroborated Feinstein's account.

Kirkpatrick downplayed Alito's pledge violation

In the 1990 questionnaire he submitted to the Senate Judiciary Committee as part of his appellate court nomination, Alito pledged to "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" in order to avoid "conflicts of interest relating to my financial interests." Alito's critics have noted that he appeared to have violated that pledge when he ruled in a 1996 case involving Smith Barney and a 2002 case involving Vanguard.

But Kirkpatrick downplayed Alito's apparent violation of his Senate pledge by accepting as fact that Alito had gone above and beyond the requirements of the ethics rules in promising not to rule on cases involving Vanguard Group and brokerage firm Smith Barney Inc. - a disputed argument that Alito himself espoused when he said he had been "unduly restrictive" in making the pledge, but which Kirkpatrick did not attribute to Alito in the January 6 report. In the January 5 report, Kirkpatrick wrote that "[e]thics guidelines did not require" Alito to recuse himself in cases involving two companies in which he had financial interests, and then noted that one "explanation" Alito has provided for ruling on the Vanguard case was that it "had not violated ethics rules." The next day, Kirkpatrick again wrote that "[e]thics guidelines did not require him [Alito] to recuse himself," at no point attributing the claim to Alito or citing anyone else in making the assertion. Nor did Kirkpatrick note at any point in the January 6 article that Democrats have emphasized what they have said is Alito's violation of that pledge, not the question of whether his failure to recuse himself violated ethics rules.

Kirkpatrick falsely suggested that all legal ethics experts agree that "lapses were minor"

To support his unquestioned acceptance of the claim that ethics rules did not require Alito to recuse himself from the cases -- apart from the question of whether his pledge independently bound him ethically to recuse himself -- Kirkpatrick suggested in his January 5 article that legal ethics experts agree that Alito's "lapses were minor." In fact, the issue of whether Alito was required by the ethics rules to recuse himself in this situation is one of genuine dispute among scholars.

As Media Matters for America noted when Kirkpatrick previously suggested on January 3 that all experts agreed that Alito was not required to recuse himself in the Vanguard and Smith Barney cases, some ethics experts, including retired Northeastern University law professor John G.S. Flym and George Washington University constitutional law professor Mary Cheh, do not hold this view. A November 1, 2005, Washington Post article noted that Flym, who agreed to help prepare the court motion for the plaintiff in the Vanguard case after learning of Alito's holdings in the company, said that "the law was quite clear" that "[i]t was improper for him [Alito] to participate in the decision." The Post article also reported Cheh's assessment that it would be the "ordinary course" for Alito to disqualify himself from the Vanguard case: "[I]f you are aware of the holdings, you should recuse yourself because you stand to benefit one way or the other."

Kirkpatrick falsely suggested that Alito has been consistent and has offered only one explanation for his failure to recuse himself from Vanguard case

Also in the January 6 report, Kirkpatrick contradicted his own reporting from the previous day by falsely suggesting that Alito has blamed the failure to recuse himself from the Vanguard case solely on a computer glitch: "Judge Alito has attributed the lapse to an error in a courthouse computer system that screened for potential conflicts." In fact, as Kirkpatrick noted in the January 5 article, Alito has responded to criticism of his failure to follow his Senate pledge with several explanations, saying, in Kirkpatrick's words, that "a courthouse computer failed to screen for one of the cases, that the case had not violated ethics rules and that his initial pledge covered only his first years on the bench." By reducing Alito's explanations for his failure to recuse himself down to one, Kirkpatrick obscured the concerns raised by Democratic senators and Alito critics about Alito's truthfulness in explaining the situation, and about his integrity more generally.

Kirkpatrick misleadingly claimed Alito's explanations were "not contradictory"

In the January 5 Times report, Kirkpatrick described Alito's explanations as "multiple but not contradictory," but even that description of Alito's evolving account is misleading. Kirkpatrick did not define what he meant by "contradictory," but logic dictates that if one of Alito's individual explanations for his "lapses" were true, it would render the other explanations irrelevant. For example, if Alito's decision to rule on the Vanguard case was based on his view that the timeframe for his 1990 pledge to recuse himself from Vanguard cases had expired, then a computer failure would have been irrelevant to his decision.

Kirkpatrick falsely suggested Alito voluntarily -- and independently -- came to the decision to "step[ ] aside" from the Vanguard case

Moreover, by suggesting in the January 6 article that Alito has attributed his failure to recuse himself only to a computer error, Kirkpatrick misrepresented the circumstances behind Alito's ultimate decision to disqualify himself from the case. Kirkpatrick simply paraphrased Sen. John Cornyn's (R-TX) dismissive explanation that Alito "stepped aside" from the case, and uncritically cited Cornyn's claim that it was ''clearly a case of no harm no foul.'' But, in fact, some of the explanations that Alito has provided -- but Kirkpatrick did not mention -- suggest that Alito purposefully heard the case, and other evidence suggests that Alito only grudgingly disqualified himself from the case after pressure to withdraw had mounted.

Alito's other explanations for hearing the Vanguard case -- that it didn't violate ethics rules and that his initial pledge not to do so had expired -- suggest that he believed he had every right to hear the case, not that he did so because a computer glitch made him unaware of his potential conflict on interest in the case. A November 3 Boston Globe report further supports the likelihood that Alito felt he was entitled to rule on the case, noting that he "complained about an effort to remove him from the case" despite ultimately disqualifying himself:

Judge Samuel A. Alito Jr. ruled in a 2002 case in favor of the Vanguard mutual fund company at a time when he owned more than $390,000 in Vanguard funds and later complained about an effort to remove him from the case, court records show -- despite an earlier promise to recuse himself from cases involving the company.


After Alito ruled in Vanguard's favor in the Maharaj case, he complained about her efforts to vacate his decision and remove him from the case, writing to the chief administrative judge of the federal appeals court on which he sat in 2003: ''I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares."

Kirkpatrick uncritically repeated Alito's dubious claim that his recusal pledge was time-limited

Kirkpatrick reported that Alito claimed that his recusal pledge "covered only his first years on the bench" while failing to note that Alito did not assert or suggest in any way that the pledge was time-limited when he included it in the 1990 questionnaire he submitted as part of his appellate court nomination, as Media Matters noted when Kirkpatrick first repeated the claim. Another apparent inconsistency in Alito's time-frame explanation -- previously noted by Kirkpatrick himself in a December 1 article but not mentioned in the January 5 report -- is that his Supreme Court nomination questionnaire revealed that outside of the one Vanguard case he participated in, Alito has continued to recuse himself from cases involving Vanguard "throughout his time on the court."

Kirkpatrick injected qualifier that Alito remark was "attributed" to him by Feinstein

Finally, in challenging an advertisement by an Alito critic, Political Action, for alleging that Alito's "excuse" for writing a 1985 memo declaring his belief that there is no constitutional basis for affirmative action or abortion was that he "only did it to get" a political job in the Reagan administration, Kirkpatrick's January 5 report injected the qualifier that the advertisement's claim apparently originated from a statement "attributed" to Alito by Senator Dianne Feinstein (D-CA). In fact, it was not just Feinstein who "attributed" the statement to Alito; several other senators who met with Alito have provided nearly identical accounts of his explanation for the memo, neither Alito nor the White House have challenged it, and Kirkpatrick himself has previously reported it as an accurate representation of what Alito said.

A November 16 Times article co-written by Kirkpatrick noted that Sen. Edward M. Kennedy (D-MA) said after meeting with Alito that he had responded to the nominee's explanation of the memo by asking, "Why shouldn't we consider the answers that you're giving today an application for another job?" Similarly, a November 16 Washington Post report noted that Sen. Jeff Bingaman (D-N.M.) "recounted a similar conversation" to the one described by Feinstein: "He indicated that that was 20 years ago and it was a job application." Even Republican Sen. Saxby Chambliss (R-GA) referred to Alito's "applying for a job" while recounting his conversation with Alito. From a November 16 Los Angeles Times report:

Republican Sen. Saxby Chambliss of Georgia also met with Alito and said the nominee's memo merely reflected his thinking at the time as a government employee. "He's been a conservative all his life, and in 1985, when he was applying for a job, he reiterated that fact," Chambliss said.

Moreover, if the Political Action ad is guilty of misrepresenting Alito's explanation of the 1985 memo by relying on Feinstein's account, then so is Kirkpatrick. In the November 16 Times article, Kirkpatrick and fellow reporter Sheryl Gay Stolberg wrote:

Seeking to tamp down a political uproar over a 1985 document in which he denounced racial quotas and said the Constitution did not protect the right to abortion, Judge Samuel A. Alito Jr. told senators on Tuesday that the sentiments were simply the views of "an advocate seeking a job."

Posted In
Government, Nominations & Appointments, The Judiciary
The New York Times
Supreme Court Nominations, Alito Nomination
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