My answer is Hell No.
quote:November 05, 2005
Judge Alito and the Vanguard Recusal Question
NPR's Nina Totenberg reported today, as did the Washington Post on Tuesday, that Judge Alito sat on a case in which Vanguard, the firm that runs mutual funds in which he has invested, was a party. Judge Alito wrote the opinion affirming dismissal of the plaintiff's claim. After he wrote the opinion, the plaintiff complained that Judge Alito should not have heard the case because of his Vanguard investments. He disagreed, but recused himself and sent the case to the Third Circuit to decide what to do. A new Third Circuit panel re-issued the opinion, with a footnote explaining the situation. Both reports stress that when he was appointed, in 1990, Judge Alito told the Senate (in answers to a questionnaire) that he would not sit on cases involving Vanguard.
It is not clear why Judge Alito heard this case in the first instance. The Post account quotes a White House representative claiming that a computer glitch was to blame. On NPR, Steve Gillers doubts this explanation, on the ground that the parties' identities would have been obvious from the briefs. Professor Gillers's comment seems right to me. The caption includes the names Vanguard Group, Inc., Vanguard Fiduciary Trust Company, Vanguard/Morgan Growth Fund, Inc., Founders Funds, Inc., Investors Fiduciary Trust Company. No computer is needed to catch something so obvious. (Note to White House"”doesn't anyone there remember the lesson of Watergate? It's the coverup that kills you.)
Did Judge Alito violate any rules by sitting on the case? Deborah Rhode opined on NPR that Alito's sitting on the case was "a violation of judicial ethics 101." Steve Lubet was more forgiving, describing it as a mistake justifying an "oops" response, but not an episode calling Alito's ethics into question. Steve Gillers pretty much agreed, though as I mentioned he rightly questioned the White House's computer cover story. Judge Alito does not control the White House, however, so its comments cannot fairly be held against him, and post-hoc stories in any event do not bear on the propriety of his conduct at the time.
To me, it is not a matter of whether he could ethically avoid recusal; but rather, he should have honored his promise to the Senate.