November 11, 2005

Attacks that make ordinary people think is that all you've got?

Pseudo-punctilious Alito opponents serve up a morsel of controversy.

UPDATE: Now that the concept of "superprecedent" has been created to beat down the Bush nominees, it's time for a new one -- you know: super-recusal. Some legal scholars attach special significance to what they call super-recusal, which is...

13 comments:

Too Many Jims said...

I agree that he is not "ordinary" but here is what Prof. Bainbridge wrote after getting off a conference call set up by Alito supporters to push back against these critiques: "The White House did not offer an effective response to that charge on this call. They need a better set of talking points. What did Alito promise and did he keep that promise? Because what they said today didn't cut it for me."

Much ado about nothing? Probably, but one would think they could do a better job of anticipating and responding to these sorts of things.

F said...

I imagine people's objections on this particular issue are more closely connected to the fact that Alito said he would step down in such a situation during his confirmation hearings and then failed to do so when the occassion arose.

In addition, I'm not so sure it is only a morsel of controversy, I mean, judicial recusals and willingnes to recuse oneself even where there is only the appearance of a conflict of interest is a vital component of retaining (the fiction of?) judicial independence and blind justice.

It's not something I think should act as a barrier to confirmation but it is something that should be a solid and well addressed talking point on all sides.

Bruce Hayden said...

I think Ann is right. This article just points out that, so far, there is little to attack Judge Alito with.

I have seen the two cases of financial interest before. In the Vanguard case, when someone complained, he did recuse himself and it was reheard. And I can't see that he used Smith Barney as his broker being of any consequence. For one, it is almost inconceivable that it would have affected him financially.

The one with his sister is even less note worthy. There he never ruled on the case at all. Rather, he was just one of 15 judges present when a motion to rehear was denied. And, of course, she wasn't a party, but rather an attorney for one of law firms representing one of them. How distant do you have to be? She wasn't a party, nor apparently actually an attorney directly working for a party.

Mark said...

I think the problem is not so much that Alito has created an appearance of impropriety, although he might have, but that he appears to have violated his promise to Senate. That is important, I think. Even some conservatives (i.e., Prof. Bainbridge) think that it may become a problem and that the White House's talking points are not convincing.
What Alito should do, in my opinion, is to apologize for violating his promise and state that it won't happen in the future.

R C Dean said...

For God's sake, he's a customer in those firms, not an owner or investor. His 'interest' in those firms is nonexistent for purposes of conflict of interest analysis. There's no conflict or appearance of conflict here to anyone who takes a moment to think about it unblinkered by partisan hatred.

You might as well say no one who owns a Ford vehicle can sit on a case involving Ford Motor Company.

Elizabeth said...

If he didn't need to recuse himself for any of the reasons presented, that's one argument. But doesn't he need to keep his word? Shouldn't he have instead told Congress, "I'll make that decision when faced with it" rather than make a promise then decide he'd promised too much? This is another instance of the bar being much lower for Republicans than Democrats.

digital mule 2 said...

I may be wrong, but I thought that the decision in the Vanguard case was not whether to pay but who to pay, the creditors or the wife. I don't see the financial interest in the outcome then for Vanguard or for the judge.

Ann Althouse said...

Elizabeth: Without delving into the original text of the promise, I'd say the promise has to be interpreted and imposing an extra-strict standard of recusal was never intended and is only being posited now for political reasons. That's how it looks to me, admittedly, from a distance. Why am I keeping a distance? Because I don't think it's anything worth spending time on.

Pooh said...

This is another instance of the bar being much lower for Republicans than Democrats.

Elizabeth,

Though I self-identify as a Dem., I think this represents a failure to do just the opposite of what you suggest: raise the bar for a Republican. The very worst these two cases represent is minor errors in judgment of an extremely techinical nature with no real-world effect. My guess (with absolutely no evidence to back it up, for, as Prof. A. said, I have better things to spend my time on.) is that one is likley to find minor "oops" moments like this on the record of any long-serving jurist. If this is the best that "No on Alito" voters have, they have nothing.

Elizabeth said...

Ann,

That's a fair and cautious distinction, but I'm still wary of close parsing of what "is" means, or "promise" means, and so forth. It may be that we need to back off holding people closely to their public statements, without room for maneuvering, but I'm not comfortable doing that for one party, when that party had such a heyday with exactly this kind of "aha!" moment.

I don't know enough yet about what the boundaries of what he promised, as opposed to what he did, but it seems fair to examine it publicly.

Elizabeth said...

Pooh, we're talking two different bars. I refer to lowering the bar on truthfulness. I don't care so much about what should guide a judge on deciding to recuse himself, but I do care that Alito apparently stated to Congress, during his hearings, that he would do so in situations involving this company. Later, he appears to have decided he set too stringent a limit in that promise. If that's not the case, then we'll find that out by public investigation and discussion. If it is the case, then we can argue about whether it's a meaningful issue or nothing to care about.

James B. Shearer said...

I think Alito forgot what he had told the Senate and got careless. I don't believe he carefully reconsidered whatever considerations had led him to his original conclusion that he should recuse himself in these cases and came to a different conclusion. This "recusal wasn't really needed" spin feels like an after the fact rationalization to me.

I don't think this is a big deal as there wasn't a signifcant conflict but Alito did foul up. He should just admit it.

Pooh said...

Elizabeth,

That's a fair point. However, does the fact that the Republicans use "Aha!" moments make it any less slimy for the Dems to do it? I think we may find that James' intution is largely correct, and the best thing for Alito to do is simply say "my bad, but no harm done" and move on.

Even if he did break a "promise" how is such a minor misstep relevant to anything of substance? He apparently likes to eat pizza when he's displeased, is that germane? Forgive my flipness, but if you want to oppose him you can find good reasons. Using this minor flap as justification for a 'no' vote just seems like a shell game for disguising results-oriented thinking.

Of course, if at the hearings he is asked about the matter and says "I never promised anything", then all bets are off. So I guess its worth asking the question, but probably not much more.