Alito's failure to recuse himself from a case involving Vanguard securities -- until the plaintiff discovered and reported his conflict of interest -- is a sidelight to the confirmation hearings. He had little financial stake in the matter, but he had pledged to recuse himself from any case involving Vanguard during his Senate confirmation for the Appeals Court seat.
Alito's story on this has been all over the map. When he was first asked to recuse himself he resisted, saying there was no real conflict. When the matter surfaced during the leadup to confirmation hearings, he and the White House blamed the failure on a "computer glitch:" a system that should have alerted the Court that Alito was not to rule on cases involving Vanguard never raised a flag. Later he said that his pledge had gone stale over time. Then, early in the hearings yesterday, Alito said he had simply forgotten about the recusal pledge when the Vanguard case arose.
Senator Feingold focused on this yesterday and brought some new information forward. It paints Alito as an arrogant liar.
I had wondered about this computer system. Did it somehow tie into brokerage firms to keep track of each jusge's holdings, or was it driven by information provided by each judge? From
today's NYT:
FEINGOLD: So my first question is this: After you were sworn in as judge, did you notify the court of your commitments to the Senate and request that the Vanguard companies, Smith Barney and First Federal Savings Loan be included on your standing list of priorities whose involvement in a case would require your recusal?
ALITO: Senator, I don't have a copy of the initial computer list, so I can't answer that question. At some point, Vanguard -- the computer lists that are available from, I think, 1992 and 1993 do not have Vanguard on it and I don't know why that is so.
FEINGOLD: So you don't recall whether you notified them or not?
ALITO: I do not. No.
...
FEINGOLD: ... So to be clear on the facts, there's no evidence that you requested that Vanguard appear on your standing recusal list before 2003 when you informed the clerk that Vanguard and apparently also Smith Barney should be added, and you don't have any independent recollection of adding them to the list before then either. That's correct, isn't it?
ALITO: That's correct.
Let's be very clear about the timeline here. Alito's memory lapses, so useful in the CAP matter, are not involved. He appeared before the Senate in 1990 applying for the Circuit Court job. He pledged during the hearings that he would recuse himself in any matters involving Vanguard and a few other firms. Weeks later, after he took his seat on the bench, he was asked by the court staff for a recusal list to be plugged into the computer database. He doesn't mention Vanguard -- he has already put the Senate pledge aside.
The contempt he showed for the Senate's earlier hearings should be on every Senator's mind today.