ALITO WIFE LEAVES HEARING IN TEARS AFTER DEM ATTACK

[dude1394]

From betsyspage

Diane Feinstein really needs to review her history. This is what she said about why Alito's nomination differed from Breyer and Ginsburg.

Gimme a break! As if Clinton wasn't trying to move the court in "a singular direction." Of course he was, but Feinstein just liked that direction so she didn't mind. And tell me that America wasn't polarized during the Clinton presidency. Does she have a total blank about the those years? And is her argument that, if the country is polarized politicially, the president can't nominate someone of his or her own ideology? Would she make those same arguments if Hillary were president? She better watch out. It's quite possible that a Democrat could be elected president and face a Senate that still has a majority of Republicans. Does she expect the GOP to suddenly become saints and roll over for the Democrats after their display on the Alito nomination? More disappointing things have happened with the GOP, but she shouldn't count on it.

If the dems think that the republicans will EVER let another liberal judge go through they are out of their minds. The dems again show that for them, it's all about power, to hell with the country.

It is going to be such a shame to see a democrat president have to recess appoint all judges. Since they will obviously be on the wrong side of the republicans politics, they can't possibly confirm them. Now that the democrats have declared that it's all about politics and not competence.

[dude1394]

It's almost not fair...Only the MSM being on the democrat payroll enables them to compete.

I love the last sentence, we SHOULD be so lucky.

Bring It On
John Kerry tries to revive the filibuster.

Friday, January 27, 2006 7:30 p.m. EST

Senator John Kerry announced yesterday that he will attempt to rally his fellow Democrats to stage a filibuster to stop the confirmation of Samuel Alito to the Supreme Court. Apparently, this is not a parody.

Mr. Kerry made this dramatic political intervention from the World Economic Forum in Davos, Switzerland, where he was communing with his political base. He wants his Democratic colleagues to revisit the filibuster strategy that they used to such brilliant effect during President Bush's first term. Republicans assailed Democrats for this obstructionism in 2002 and 2004, and the issue helped them win a mere seven or eight seats in red states.

And this was after filibusters on obscure appellate nominees. Imagine the political gain for Republicans after a Supreme Court filibuster--with all of its 24/7 publicity--by blue-state liberals against a modest Italian-American with impeccable legal credentials and stainless ethics. Mr. Kerry really seems to believe that the country will rise up in fury when it discovers that Judge Alito believes that the Constitution gives a President wide powers to defend America.

Back on planet Earth, at least three red-state Democrats have now said they'll vote for Judge Alito. Two of them--Robert Byrd of West Virginia and Ben Nelson of Nebraska--happen to be up for re-election this year. Mr. Kerry may not care much about the Senate because his real goal is winning the Democratic nomination for President again in 2008. Republicans should be so lucky.

[dude1394]

From Polipundit

The Futile Filibuster

This is about the best summary of the Democrats’ filibuster I’ve read:

Every Democrat supporting the Alito filibuster deserves what they’re about to get, and I hope they remember it in the coming years. But of course they won’t. Their current political philosophy of preference is that of an average three year old: Throw a tantrum when you don’t get your way, and whine when the tantrum leads to an even worse outcome. Oh, and the outcome isn’t real anyway… elections you don’t win are always stolen. Waaahhhhh!! Waaahhhhh!!!

Traditionally the behavior of the current crop of Senate Democrats would have been universally condemned. You don’t vote against - let alone filibuster - a superbly qualified judge on the basis that you disagree with future rulings you imagine he or she might make in the future. That’s a prescription for a judiciary full of legislative gladhanders and sycophants. It would also make it virtually impossible for a president to appoint judges without his party holding a majority in the Senate. It’s not for nothing the most partisan of Senate forbears didn’t do what the current Senate Democrats seem intent upon.

I have been trying to sort out the rationale for Senate Democrats doing this for a while, and can only conclude they’re doing so because they truly believe the public didn’t perceive them as antagonistic enough toward the Bush administration. Good Lord. What color is the sky in their world? Almost any way you slice it, the partisan rancor in Washington has already sent the non-aligned general public to the breaking point of their patience.

No leftist I have seen has explained the rationale for rejecting Alito - let alone filibustering him - in terms that couldn’t be turned against any nominee of a Democratic president in the future. And political reality means that, unlike in the past, such an outcome is now inevitable.

Polipundit was nice enough to leave out the last sentence from this blogger.. I however am not so non-partisan.

Foolish and ineffective, yet damaging of American governance going forward. Ladies and gentlemen, I give you the modern Democratic party.

[Mavdog]

there are honest disagreements about alito's qualifications, but yes it should just be a yes or no vote.
I still have reservations not on his qualifications but rather on his conduct (see the vanguard actions).
here's a good "rationale for rejecting alito" that the author above is eeking:

Why the Senate should not confirm Alito
Supreme Court doesn't need a justice who has no interest in restraining `presidential powers'
Advertisement


By Geoffrey R. Stone

January 24, 2006

I supported the confirmation of John Roberts Jr. to the U.S. Supreme Court and, until recently, the confirmation of Samuel Alito Jr. I have reluctantly come to the conclusion, however, that Judge Alito should not be confirmed and that this is a matter of real importance to the nation.

Alito is a smart, experienced and knowledgeable jurist. I have no doubt of his legal ability. On balance, the Senate should give more weight to excellence than judicial philosophy.Why, then, should the Senate deny confirmation to Alito? The most fundamental responsibility of the Supreme Court is to preserve both the separation of powers and the individual liberties guaranteed by our Constitution. They are the bulwarks of our freedom. Yet history teaches that these indispensable elements of our constitutional system are most threatened in time of war. Too often in wartime, the president demands excessive authority in his role as commander in chief and the president and Congress run roughshod over civil liberties in their effort to protect, or appear to protect, the nation.

This was true when Abraham Lincoln suspended the writ of habeas corpus, Franklin D. Roosevelt ordered the internment of 120,000 individuals of Japanese descent, Richard M. Nixon ordered unlawful break-ins and wiretaps against those who opposed the Vietnam War, and Congress enacted the Sedition Act of 1798, the Sedition Act of 1918, and the Smith Act of 1940. We hope, of course, that presidents and Congress will act with restraint and wisdom. But we know that, in times of crisis, they frequently overreact to perceived danger, manipulate public opinion and needlessly sacrifice our liberties.

The last line of defense against such excesses is the Supreme Court. With life tenure, the justices are largely insulated from the need to please any particular constituency for personal advancement. And with their unique commitment to long-term principle rather than short-term political expediency, they are well-placed to resist the fears and anxieties of wartime.

Through our history, the court has had a mixed record in fulfilling this responsibility. During World War I, it upheld the convictions of individuals for criticizing the war; during World War II, it upheld the internment of Japanese-Americans; and during the Cold War, it initially upheld the persecution of American citizens because of their political beliefs and associations.

At other moments, however, the court has performed admirably.

During the Korean War, it held that President Harry Truman had exceeded his constitutional authority as commander in chief when he sought to take over the steel industry; in the latter part of the Cold War, it held unconstitutional government actions directed against "disloyal" Americans; during the Vietnam War, it rejected Nixon's effort to enjoin the publication of the Pentagon Papers and his claim that he could constitutionally conduct "national security" wiretaps without judicial warrants; and during the war on terrorism, it rejected President Bush's claims that he had the "inherent" authority to deny habeas corpus to individuals detained at Guantanamo Bay and could unilaterally decide to detain American citizens indefinitely without even a hearing on whether they were in fact "enemy combatants."

The single most critical factor that distinguishes the decisions in which the court failed from those in which it succeeded was the character and constitutional philosophy of the justices serving at the time. Those justices who abdicated their responsibility and chose blindly to defer to excessive presidential claims approved the pervasive suppression of dissent during World War I, the Japanese internment and the rampant abuses of McCarthyism. Those who were determined to ask hard questions and to insist that the president and Congress comply with the Constitution gave the nation the steel seizure decision, the Pentagon Papers decision and the 2004 decision preserving the due process rights of American citizens.

Now, Bush arrogantly asserts that he has the inherent constitutional authority to wiretap American citizens on American soil without first obtaining a warrant, in direct defiance of federal legislation and the 4th Amendment. This is on top of his previous assertions of inherent authority to employ torture, wiretap lawyer-client communications, confine American citizens incommunicado and close deportation and other legal proceedings from public scrutiny.

Given the times in which we live, we need and deserve a Supreme Court willing to examine independently these extraordinary assertions of executive authority. We can fight and win the war on terrorism without inflicting upon ourselves and our posterity another regrettable episode like the Red Scare and the Japanese internment. But that will happen only if the justices of the Supreme Court are willing to fulfill their essential role in our constitutional system.

Whatever else Alito may or may not have made clear about his views on such issues as abortion, federalism and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander in chief. That, in my judgment, poses a serious threat to the nation and is a more than adequate reason for the Senate--Republicans and Democrats alike--to deny his confirmation to the Supreme Court.

----------

Geoffrey R. Stone is a law professor at the University of Chicago and the author of "Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism."

[dude1394]

It sort of tells me what the left believes has become the purpose of the court. To be a sort of super-geneva senate to ride herd over everything. I'm actually pretty shocked that this law professor would vote down alito becuase he doesn't agree with his political view that dubya has exceeded his bounds.

Well not exactly shocked because of the prior post on the left's political ignorance.

What is the basis for his assertion that Alito is going to be in the administrations hip pocket?

[Drbio]

The left is only concerned with keeping themselves in their waning seats and having whatever power they can hold on to. They are NOT interested in confirming a well qualified intelligent candidate who is able to think for himself and not rely on their input to decide case law.

[Mavdog]

Originally Posted by dude1394

It sort of tells me what the left believes has become the purpose of the court. To be a sort of super-geneva senate to ride herd over everything. I'm actually pretty shocked that this law professor would vote down alito becuase he doesn't agree with his political view that dubya has exceeded his bounds.

Well not exactly shocked because of the prior post on the left's political ignorance.

What is the basis for his assertion that Alito is going to be in the administrations hip pocket?

no dude, it is his legal views of alito the author is referencing.

i've still not heard anyone defend alito's actions on the vanguard case. his conduct shows poor decisions and ethics imo.

[dude1394]

Well I don't recall the professor that you quoted saying anything about the vanguard case? Was it in there and I missed it?

[Mavdog]

no, it wasn't discussed by the professor, that is my objection to alito. are you familiar with the issue?

edit: here is a synopsis.

Alito and Vanguard
The Associated Press
Published 11:30 am PST Wednesday, January 11, 2006
WASHINGTON (AP) - Supreme Court nominee Samuel Alito's promise to the Senate in 1990 about avoiding conflicts of interest and his participation in a 2002 case involving the Vanguard Group have been a source of debate and disagreement at his confirmation hearings.
What the nominee said, did and wrote:

In 1990, Alito, then a nominee for the 3rd U.S. Circuit Court of Appeals, promised the Senate if confirmed he would disqualify himself from cases involving Vanguard, a mutual fund company; Smith Barney Inc.; First Federal Savings and Loan of Rochester, N.Y.; and his sister Rosemary's law firm. Alito made the promise in his questionnaire for the Senate Judiciary Committee.

In his 2004 financial disclosure, Alito said he owned shares in 14 Vanguard Group mutual funds, with a combined worth of $455,000 to $1.05 million.

---

In 2002, Alito served on a three-judge panel of the 3rd Circuit that ruled unanimously in favor of Vanguard in a case involving the account of a deceased investor. The investor's widow sought a new review and Alito's disqualification, citing his substantial investments in the company.

Alito wrote to the chief judge of the circuit that he did not believe he was required to withdraw from the case but would step aside voluntarily. The letter did not mention his promise to the Senate in 1990.

The court reheard the case and came to the same conclusion.

---

After President Bush nominated Alito on Oct. 31, Alito and administration officials blamed his participation in the case on a computer error that had failed to flag the case. Alito also wrote the chairman of the Senate Judiciary Committee, Sen. Arlen Specter, R-Pa., that his earlier pledge to the committee covered his "initial service" as a judge and as the years passed, he realized it had been "unduly restrictive."

---

A special panel of the American Bar Association, in a letter dated Jan. 9, said: "Judge Alito enjoys an excellent reputation for integrity and character, notwithstanding a widespread awareness of the Vanguard and Smith Barney recusal issue. During his personal interview with us, Judge Alito was asked about the recusal matter in detail and he acknowledged at length that he takes the matter of recusal 'very seriously' and the case had slipped through the court screening process."

Alito told the ABA that his failure to withdraw from the case was an oversight.

---

In his testimony Tuesday, Alito said he did not recall whether he notified the 3rd Circuit about his commitment to the Senate to disqualify himself from participating in cases involving Vanguard and other companies.

Said Sen. Russell Feingold, D-Wis.: "Judge, we know you notified the clerk in 1990 that the U.S. attorney's office and your sister's law firm should be on your standing recusal list because you recused yourself from a number of such cases in the first several years you were on the bench. ... Do you remember removing them from your standing recusal list or is it fair to assume - or is it your belief that they were never put on your recusal list?"

Alito replied: "Senator, I don't know. I don't know whether they were removed. I don't think I ever told the clerk's office: Take them off."

He said he did not know whether they were removed or whether, when he submitted a new list, the companies were omitted.

"There was an oversight. And the oversight was on my part in not focusing on the issue of recusal when I first received the case," Alito said.

The judge backed off his previous contention that there had been a computer glitch, saying the statement was based on the wrong impression.

---

On Wednesday, Sen. Edward Kennedy, D-Mass., questioned Alito about his "initial service" and how long did he intend to keep the pledge.

"I was following, throughout my time on the bench, the practice of going beyond the code. And had I focused on this issue when the matter came before me, I would have recused myself at this time as I later did," Alito said.

Kennedy said the "initial service" element was a new explanation and he questioned how many years Alito would define as initial service.

Alito responded: "Looking at the question now, where it says initial period of service, I would say that 12 years later is not the initial period of service."

No Democrat suggested that Alito benefited financially from the Vanguard case.

Alito later told the committee that if confirmed as a justice, he did not believe that he would have to disqualify himself on Vanguard cases based on the Supreme Court's code of judicial conduct. Alito said it differs from the appeals court code.

[dude1394]

Originally Posted by Mavdog

no dude, it is his legal views of alito the author is referencing.

These are not "legal" views he is espousing here.

Now, Bush arrogantly asserts that he has the inherent constitutional authority to wiretap American citizens on American soil without first obtaining a warrant, in direct defiance of federal legislation and the 4th Amendment. This is on top of his previous assertions of inherent authority to employ torture, wiretap lawyer-client communications, confine American citizens incommunicado and close deportation and other legal proceedings from public scrutiny.

These are straight out of the moveon.org, the maggot moore and the DNC mailings.

Let's pretend this guy is a JUDGE, do you think he would be unbiased in those cases? Come on.

[dude1394]

Originally Posted by Mavdog

no, it wasn't discussed by the professor, that is my objection to alito. are you familiar with the issue?

Okay so what's the point. He had investements in a vanguard managed mutual fund right. The mutual fund was invested in a set of stocks I assume and whether vanguard itself did anything wrong or right would/would not have influenced those investements? I don't honestly see how but I guess it could be seen as possible.

So are you accusing him of not recusing himself for financial gain?

Or is it the discrepancy on the earlier statement that you say disqualifies him?

[Mavdog]

alito made a statement, a promise, in his 1990 confirmation hearings that he would not participate in any cases involving (among others) vanguard investments.

in 2002 a case involving vanguard came before his court. he failed to recuse himself, and he ruled in favor of vanguard.

in 2004 his financial statement showed that he had kept the investment in vanguard funds.

he did not fulfill his promise that he made to the committee. he also did not follow normal rules of judicial conduct and recuse himself from any case which they have a personal interest.

when exposed, he tried to explain it on a computer error. then it comes out he failed to list vanguard in any of the forms as someone that would cause his recusal.

these are not traits that signal a person with integrity, or someone who acts within the framework of public trust.

he deceived the committee, he then deceived the court by not listing vanguard.

[dude1394]

kerry continues to be a boon to republicans

Tilting at Alito
By Joan Vennochi, Globe Columnist | January 29, 2006

IN MASSACHUSETTS, old liberals never die. They just keep tilting at windmills.

At the last minute, Senator John Kerry called for a filibuster to stop the Supreme Court nomination of Samuel A. Alito Jr. Senator Edward M. Kennedy joined the fight.

The initial reaction from fellow Democrats was tepid. Tepid it should remain.

Alito is conservative. But radical? The Democrats failed to make the case during hearings which proved only one thing beyond a reasonable doubt: their own boorishness.

Calling for a filibuster is a late, blatant bow to the left. It seemed more theatrical than realistic. Still, any such bowing from Massachusetts helps the Bush administration. ''Bring it on," chortled the Wall Street Journal after Kerry announced his effort to rally fellow Democrats from the World Economic Forum in Davos, Switzerland. There, the Journal snidely observed, he was ''communing with his political base."

[Drbio]

Alito will be confirmed on Tuesday and we get on to the business of law without distraction.

As for kerry....he is insignificant at best these days.

[dude1394]

Nice to have the adults in charge isn't it?

[Mavdog]

are you going to attempt to explain or defend alito's conduct in regard to vanguard?

or is it OK for ethically challenged judges to be promoted to our country's highest court?

[dude1394]

Actually from what you've posted and I've read Alito seems to have a very long history of ethical behaviour, it seems that most of his peers, the ABA and others have stood up for his integrity. I honestly don't have enough concern about Vanguard to take the time to look into it. If it were anywhere near a real scandal it would probalby be touted by the NYTimes/WaPo. I can always count on them to make sure nothing republican gets overlooked.

These comments seem to agree that he shouldn't have done it but that it's pretty much an anomaly. And that he's not ethically challenged.

http://volokh.com/posts/1131314794.shtml

If the dems want to filibuster him because of it, okay, but that's not what I'm hearing from them but that he's somehow out of the mainstream.

Sounds like he has a very long history of integrity.

[Mavdog]

there won't be any filibuster.

honesty is typically a black and white issue. either one keeps their word, or one doesn't and tries to gloss over it.

in this case of alito, it is unfortunately the later.

[dude1394]

Well mavie that's YOUR opinion. But it doesn't seem to be the opinion of others I respect. Nor does it seem to be the opinion of other lawyers, judges, ABA, co-workers etc. Even the law professor you cited didn't mention vanguard. Who is touting it as the reason to not confirm the guy? Democrats really don't count here as they've shown that all they really care about are his politics imo.

You either do or do not believe Alito (I guess I just haven't cared enough to get into it) that it was some sort of clerical (computer) error. From all references he's an ethical man whom I would give the benefit of the doubt from.

http://powerlineblog.com/archives/012795.php

http://powerlineblog.com/archives/012789.php

I only picked the powerline guys because I know they are lawyers and have some credibility imo of not overlooking what they consider unethical behaviour.

What does it say when that paragon of virtue you cite in other instances McCain seems to not only be voting for him, but voting for him enthusiastically?

Washington D.C. *– U.S. Senator John McCain (R-AZ) today issued the following statement regarding Supreme Court Nominee Judge Samuel Alito:

“I will vote to confirm Judge Alito, who demonstrated in his testimony before the Senate Judiciary Committee that he will be an intelligent, fair, and open-minded justice who respects the judiciary’s important but limited role of interpreting the law.”

[Mavdog]

it appears my expectations of conduct are higher than the posts you refer to.

[dude1394]

Originally Posted by Mavdog

it appears my expectations of conduct are higher than the posts you refer to.

I wouldn't doubt that. So what's your opinions of bill and hillery?

[Mavdog]

are they nominees for the supreme court?

[dude1394]

Originally Posted by Mavdog

are they nominees for the supreme court?

The question was an attempt to probe your expectations of ethical conduct which I don't doubt.

I would assume it applies to more than judges?

[Mavdog]

imo the acceptable conduct of a judge is different than that of a politician, and the politician is different than that of someone who is not a politician.

to me, a judge is subject to a higher standard than a politician. for instance, a politician may meet with a lobbyist, while that would be very poor conduct for a judge.

a politician may have assets in a vanguard mutual fund and still vote on a bill that deals with mutual fund regulations. a judge otoh if they have assets in a vanguard mutual fund should NOT be involved with ANY case dealing with vanguard.

[dude1394]

Hmm...I"m a tad confused, is it the fact that he DIDN"T recuse himself or the assertion that he said he would that you take issue with? It sounds like the former?

I think you have a better ethical argument for voting against because you assert that he said he would recuse but didn't than that he should have. The latter seems like an arguable decision. Even if you don't agree with it are you saying he did it for financial gain?

[Mavdog]

no, there was no inference of alito having a finacial gain. that is not the issue.

he promised in his confirmation hearings that he would recuse himself on any cases relating to multiple items- his siter's law firm for instance, and the issue of vanguard.

he not only did not recuse himself and heard the vanguard case, he deliberately did not include vanguard on the list of those who would trigger his recusal.

these were cognizant actions on his part. there was no innocent lack of memory or forgetfulness imo. he chose to do what he promisded not to do, and he also hid his conflict from the court when that should have been revealed.

[kg_veteran]

he deliberately did not include vanguard on the list of those who would trigger his recusal.

How do you know this?

Re: the recusal, I think I know a bit more about judicial ethics than you do, Mavdog, and I see nothing wrong with what he did. Certainly, it doesn't help your argument when one realizes that Alito went back and recused himself on the Vanguard case, and then the same result was reached by another panel.

[Drbio]

He doesn't know that at all. It is all we get lately from mavdog. Outlandish statements, with no supportive data, followed my misdirection.


typical mavdog motus operandi.

[Mavdog]

Originally Posted by kg_veteran

How do you know this?

alito's own admissions. he first stated that vanguard must not have been flagged due to "a computer glitch", anfd subsequently admitted that not to be the case. when asked if vanguard had ever been placed on the list, he feigned a lack of knowledge. either it was on the list and somehow missed (which by all accounts is NOT the case), it was on th list and removed, or never put on the list.

Re: the recusal, I think I know a bit more about judicial ethics than you do, Mavdog, and I see nothing wrong with what he did. Certainly, it doesn't help your argument when one realizes that Alito went back and recused himself on the Vanguard case, and then the same result was reached by another panel.

how does the fact of the end ruling justify the participation in the case when he 1) promised the committee that he would NOT do such, and 2) failed to advise of the conflict during the case?
it doesn't.
nobody is accusing him of financial gain, merely it illustrates a defect in his honesty.

[kg_veteran]

Originally Posted by Mavdog

alito's own admissions. he first stated that vanguard must not have been flagged due to "a computer glitch", anfd subsequently admitted that not to be the case. when asked if vanguard had ever been placed on the list, he feigned a lack of knowledge. either it was on the list and somehow missed (which by all accounts is NOT the case), it was on th list and removed, or never put on the list.

The way I understand it, the computer system wasn't used for pro se cases (which the case in question was). When initially questioned about the case, I don't know whether he knew it was a pro se case or not.

As for "feigning a lack of knowledge," I hope you're not claiming to be a mind reader. You have no way of knowing whether Vanguard was ever in the computers or not.

I see nothing to back up your assertion that Alito deliberately didn't include Vanguard on the recusal list. For all we know, Vanguard was in the computers at one time and was subsequently removed. That certainly would have had no impact in this particular case, since the computers wouldn't have been used to run a conflict check anyway.

how does the fact of the end ruling justify the participation in the case when he 1) promised the committee that he would NOT do such, and 2) failed to advise of the conflict during the case?
it doesn't.
nobody is accusing him of financial gain, merely it illustrates a defect in his honesty.

Here is the actual "promise" Alito made in his response to the Senate Questionnaire during his confirmation proceedings in 1990:

Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts-of-interest during your initial service (emphasis mine) in the position to which you have been nominated.

I would adhere to the applicable standards for disqualifications, including Canon 3C of the Code of Judicial Conduct, 18 U.S.C. 207, and related regulations. I would adhere to Canon 5 to minimize the risk of future conflicts.


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.


I would disqualify myself from any case involving my sister's law firm, Carpenter, Bennett & Morrissey, of Newark, New Jersey.


I would disqualify myself from any case in which I participated or that was under my supervision in the United States Attorney's Office or in any prior position.

Reading his response in context, I don't think that Alito did anything wrong at all.

There is no evidence to suggest that Alito intentionally or deliberately deceived anyone. The whole thing is a non-issue.

[Mavdog]

Originally Posted by kg_veteran

The way I understand it, the computer system wasn't used for pro se cases (which the case in question was). When initially questioned about the case, I don't know whether he knew it was a pro se case or not.

As for "feigning a lack of knowledge," I hope you're not claiming to be a mind reader. You have no way of knowing whether Vanguard was ever in the computers or not.

I see nothing to back up your assertion that Alito deliberately didn't include Vanguard on the recusal list. For all we know, Vanguard was in the computers at one time and was subsequently removed. That certainly would have had no impact in this particular case, since the computers wouldn't have been used to run a conflict check anyway.

from the testimony I recall reading at the confirmation hearings on this nomination, the list did not contain vanguard. this was the point of the admission that there was no "computer glitch". there was a question of if it was removed or not placed on the list. as there is nobody who can recall removing it from the list, it seems the only way for it to not be on the list is that it never was on the list.

are you suggesting that alito forgot the statement that he made in regard to vanguard? if so, are you saying that we should have a judge who does not possess the capability to remember?

do you have another plausible explanation?

There is no evidence to suggest that Alito intentionally or deliberately deceived anyone. The whole thing is a non-issue.

thanks for providing the very statement that alito made where he said he WOULD recuse himself from (among others) any case involving vanguard.
now explain how that statement was not violated by his failure to NOT recuse himself on the vanguard case that he heard and voted on?

[kg_veteran]

Originally Posted by Mavdog

from the testimony I recall reading at the confirmation hearings on this nomination, the list did not contain vanguard. this was the point of the admission that there was no "computer glitch". there was a question of if it was removed or not placed on the list. as there is nobody who can recall removing it from the list, it seems the only way for it to not be on the list is that it never was on the list.

are you suggesting that alito forgot the statement that he made in regard to vanguard? if so, are you saying that we should have a judge who does not possess the capability to remember?

do you have another plausible explanation?

I'm suggesting that the computer system wasn't used for this particular case, and so it is irrelevant.

As to why Vanguard wasn't on the list in 2002, I have no clue, but I don't think that suggests any deliberate or intentional act on Alito's part. It just suggests that the name wasn't on the list. It could have been intentional or deliberate, but it also could have been inadvertent or some sort of clerical error.

If you're going to say somebody did something intentionally or deliberately, there should be more evidence than just, "The name's not on the list."

thanks for providing the very statement that alito made where he said he WOULD recuse himself from (among others) any case involving vanguard.

now explain how that statement was not violated by his failure to NOT recuse himself on the vanguard case that he heard and voted on?

Read it in question and answer format, and it makes a lot more sense:

***

Q: Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern.

A: I would adhere to the applicable standards for disqualifications, including Canon 3C of the Code of Judicial Conduct, 18 U.S.C. 207, and related regulations. I would adhere to Canon 5 to minimize the risk of future conflicts.

Q: Identify the categories of litigation and financial arrangements that are likely to present potential conflicts-of-interest during your initial service (emphasis mine) in the position to which you have been nominated.

A: 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.


I would disqualify myself from any case involving my sister's law firm, Carpenter, Bennett & Morrissey, of Newark, New Jersey.


I would disqualify myself from any case in which I participated or that was under my supervision in the United States Attorney's Office or in any prior position.

***

I believe that he was responding to the second question and stating that out of an abundance of caution he would disqualify himself from Vanguard cases during his initial service as Justice on the Third Court of Appeals.

At best, you have a difference of opinion on what the Senate meant and Alito understood regarding the term "initial service."

[Mavdog]

Originally Posted by kg_veteran

I'm suggesting that the computer system wasn't used for this particular case, and so it is irrelevant.

As to why Vanguard wasn't on the list in 2002, I have no clue, but I don't think that suggests any deliberate or intentional act on Alito's part. It just suggests that the name wasn't on the list. It could have been intentional or deliberate, but it also could have been inadvertent or some sort of clerical error.

If you're going to say somebody did something intentionally or deliberately, there should be more evidence than just, "The name's not on the list."

this seems to be avoiding the issue. the fact that the list was not used for the case doesn't correlate to any explanation of the ommission of vanguard does it?

regardless of why the name "vanguard" wasn't listed, what explanation can you provide as to why alito didn't say "wait, I shouldn't be involved with the decision on this case" and recuse himself. Don't you believe that recusal would have been the correct course of action? isn't the fact that he didn't speak out an intentional, deliberate act in of itself?

I believe that he was responding to the second question and stating that out of an abundance of caution he would disqualify himself from Vanguard cases during his initial service as Justice on the Third Court of Appeals.

At best, you have a difference of opinion on what the Senate meant and Alito understood regarding the term "initial service."

so your suggesting that there was a "fuse" on his committment? that there would not be his involvement for a shorter period of time and then, even if there were no change in his having investments in a vanguard fund(s), he would subsequently be allowed to not recuse himself?
that's an odd position, if the facts producing the prohibition of his involement had not changed why would the agreed to limitation change?

[kg_veteran]

Originally Posted by Mavdog

this seems to be avoiding the issue. the fact that the list was not used for the case doesn't correlate to any explanation of the ommission of vanguard does it?

No, but it does render the list irrelevant.

regardless of why the name "vanguard" wasn't listed, what explanation can you provide as to why alito didn't say "wait, I shouldn't be involved with the decision on this case" and recuse himself.

Now we're getting to something relevant.

My explanation would be that he didn't view it as a conflict of interest. This is consistent with everything he has said about the case.

Don't you believe that recusal would have been the correct course of action?

No.

isn't the fact that he didn't speak out an intentional, deliberate act in of itself?

Yes, he chose not to say anything because he did not view it as a conflict of interest. But it is not in any way an act of deception, as you insinuated earlier when you said he "intentionally and deliberately" left Vanguard off the recusal list.

so your suggesting that there was a "fuse" on his committment? that there would not be his involvement for a shorter period of time and then, even if there were no change in his having investments in a vanguard fund(s), he would subsequently be allowed to not recuse himself?
that's an odd position, if the facts producing the prohibition of his involement had not changed why would the agreed to limitation change?

I thought my response above was pretty clear. I think that Alito basically said, "I don't see any conflict of interest; nonetheless, I won't hear any cases involving Vanguard, etc., during my initial service on the Third Court of Appeals."

[Mavdog]

kg, it's clear that you do not see alito's assurances to the committee as a reason for him to recuse himself.

I can't agree.

first, as you posted yourself, he made the statement that he would recuse himself from vanguard related cases. to say that the qualification of "initial term" limits his agreement to recuse is splitting hairs. can you define "initial term" for a position that doesn't have "term"s?

second, he agreed that he would adhere to the code of jconduct for judges, in which it is stated without qualification that any judge should recuse himself from any case in which the judge has a fiduciary interest in one of the parties. vanguard satisfies this description, as alito had investments in several vanguard funds at the time.

the end result of the case does not negate the code of conduct nor his assurances to the committee.

he did not follow through with the promises he made. i cannot believe that he forgot the assurances, or that he did not know that he had money placed in vanguard funds, or that having the fiduciary relationship with vanguard didn't conflict with the code of conduct for judges.

if you take the position that he didn't know of the fiduciary conflict, one would have to agree that he wasn't intellectually qualified to sit on the a court....

I'll ask you again, how can his participation in the cases be seen in a positive light?
second to that, if you were representing vanguard, wouldn't you claim that alito should not sit in judgement on that case?

surely you would.

[Drbio]

I wonder which view is correct? One one hand we can choose an experienced attorney who has thoughtfully dissected the conversation and understands the processes involved. On the other hand of course we can choose an effin' knowitall who hasn't been correct in this forum in months. Tough choice.

[kg_veteran]

Originally Posted by Mavdog

kg, it's clear that you do not see alito's assurances to the committee as a reason for him to recuse himself.

I can't agree.

first, as you posted yourself, he made the statement that he would recuse himself from vanguard related cases. to say that the qualification of "initial term" limits his agreement to recuse is splitting hairs. can you define "initial term" for a position that doesn't have "term"s?

In my opinion, there are two reasonable interpretations of his response to the Senate questionnaire. One would be the interpretation that you have, which is that he just said, "I won't hear any cases involving Vanguard." The second would be the one I have, which is that he wouldn't hear cases during his "initial service" on the Third Court of Appeals. The second is the one that Alito himself has said was his intention when he answered the question.

I don't know how Alito defined the term "initial service," but it should be pointed out that he didn't come up with the term. The Senate questionnare did. Either way, I think that it was reasonable for Alito to believe that his "initial service" was over and that not hearing any Vanguard-related cases at all would be "unduly restrictive."

Bottom line, I think it's incredibly trivial to argue that Alito is ethically challenged because he supposedly broke an ambiguous promise made to the Senate during his confirmation hearings over a decade earlier. Incredibly trivial.

second, he agreed that he would adhere to the code of jconduct for judges, in which it is stated without qualification that any judge should recuse himself from any case in which the judge has a fiduciary interest in one of the parties. vanguard satisfies this description, as alito had investments in several vanguard funds at the time.

Wrong.

Canon 3 of the Judicial Code of Conduct provides in pertinent part that a judge shall disqualify himself when "the judge knows that the judge, individually or as a fiduciary, . . . has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding . . ."

A "fiduciary" is defined by Canon 3 as including such relationships as "executor, administrator, trustee, and guardian." Owning mutual funds clearly does not qualify as a "fiduciary," since a fiduciary by definition owns something for the benefit of another. The mutual funds Alito owned were owned by him individually.

Although Alito owned the mutual funds individually, that ownership did not constitute a "financial interest" in "a party to the proceeding." Why? Because Canon 3 states that "ownership in a mutual or common investment fund that holds securities is not a 'financial interest' in such securities unless the judge participates in the management of the fund."

Further, it should be pointed out that in the 2002 case, there were two competing claimants for the Vanguard funds. Vanguard was only named as a party because it was going to have to pay the funds to whichever claimant won the lawsuit. Vanguard neither benefited nor lost anything from the outcome of the suit. While it would be incredibly difficult to see how Alito's mutual fund investments would be affected by litigation against Vanguard, in this case that argument of indirect financial benefit doesn't even exist, because there was no benefit (or detriment) to Vanguard. At all.

There is a reason that none of Alito's detractors have argued that he violated the Judicial Code of Conduct by not disqualifying himself. It's because he didn't violate the Judicial Code of Conduct.

he did not follow through with the promises he made. i cannot believe that he forgot the assurances, or that he did not know that he had money placed in vanguard funds, or that having the fiduciary relationship with vanguard didn't conflict with the code of conduct for judges.

if you take the position that he didn't know of the fiduciary conflict, one would have to agree that he wasn't intellectually qualified to sit on the a court....

I've explained why there was no "fiduciary [sic] conflict." If you're going to insult the man's intellect, at least know what the Code of Conduct requires first.

As to your claim that he did not "follow through with the promises he made," I respectfully disagree with you and would point out again that it seems incredibly trivial to me to try and challenge the man's ethics based upon an ambiguous promise made over a decade earlier during his confirmation proceedings.

I'll ask you again, how can his participation in the cases be seen in a positive light?

The only way that it can be seen in a negative light is that he ended up voluntarily disqualifying himself after a motion filed by the losing party, which ended up costing the taxpayers money. His participation in the case had absolutely no impact on his holdings, was not in any way barred by the Code of Judicial Conduct, and in my opinion didn't violate any promises that Alito supposedly made. Alito himself has said he would probably handle it differently if he had it to do all over again, but I think that's simply because so much has been made of such an incredibly insignificant event.

second to that, if you were representing vanguard, wouldn't you claim that alito should not sit in judgement on that case?

surely you would.

Let's see. The judge might potentially be biased TOWARD my client (I'm not saying Alito was, but his detractors are saying he might have been), and I'm going to move to disqualify him?

I would be a pretty poor advocate if I did that.

Further, I can say with complete candor that if I were representing a party suing Vanguard, I would have no problem with Alito hearing the case. Ownership of a mutual fund simply isn't something that, in my view, creates any sort of conflict of interest.

[Mavdog]

kg, I'll reread the canons. you may be correct, I was under the impression it was the firms held by the fund that were exempt from conflict.

my question was not typed correctly, here's what it should have said:

if you represented the company suing vanguard, wouldn't you claim that alito should not sit and judge the case?

you said "with candor" that ownership of the fund wouldn't bias the jusge, yet with discovery of his assurances to the committee at his confirmation there is a clear connection to leverage.

[kg_veteran]

Originally Posted by Mavdog

my question was not typed correctly, here's what it should have said:

if you represented the company suing vanguard, wouldn't you claim that alito should not sit and judge the case?

you said "with candor" that ownership of the fund wouldn't bias the jusge, yet with discovery of his assurances to the committee at his confirmation there is a clear connection to leverage.

I don't agree with you. I don't think that Alito's "promise" indicated that he had any kind of leverage with Vanguard at all.