Supreme Court nominee Alito grapples with ethics criticism
Samuel Alito will face questions about a 2002 case involving the Vanguard Group.
By Associated Press
Published November 26, 2005
WASHINGTON - Judge Samuel Alito has said he did not break a federal ethics law when he ruled in a case involving the company that handles his mutual fund investments.
Legal experts are divided over whether Alito did anything wrong in the case three years ago. Some say they are more concerned about his explanation of his role in that case - along with questions about what his recusal practices will be if confirmed to the high court.
Judges, including Supreme Court justices, are required by law to stay out of cases in which they have a financial stake. Members of the high court, however, decide for themselves when to recuse with no oversight.
Alito serves on the 3rd U.S. Circuit Court of Appeals in Philadelphia and has most of his money in mutual funds. When he joined the court in 1990 he said he would avoid cases in which Vanguard Group was a party.
Senators questioned him about the 2002 Vanguard case, which was the subject of a complaint filed by the woman who lost her lawsuit. Alito withdrew after first ruling against her; the decision was reaffirmed without his participation.
Alito and the White House have offered several explanations: that a computer glitch allowed the disqualification issue to slip through undetected, that Alito's 1990 pledge to stay out of Vanguard appeals only applied to initial service, and that the promise was "unduly restrictive."
"The explanation causes greater concern than the problem," said Stephen Gillers, a professor specializing in legal ethics at New York University's School of Law. "It would have all gone away if Judge Alito had said, "This was an oversight.' People can forgive oversights. We all have them."
Judges who have even one share of stock in a company are not allowed to rule in cases involving that company. Because of that, recusals are common at the high court.
Steven Lubet, an ethics expert at Northwestern University, said the rules for judges and their mutual funds is not clear. He said Alito should be praised for keeping the bulk of his money in mutual funds instead of in individual stocks.
Nominated late last month by President Bush, Alito would replace retiring Justice Sandra Day O'Connor, who has extensive stock holdings.
