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Wednesday, November 16, 2005

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

by Greg Bates

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.

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.

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