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If someone made a promise to you to behavior in a specific manner under specific circumstances. And then, when faced with the circumstance, acts in a manner directly opposite to his/her earlier position; would you then trust him/her when they later say how they will or will not act?

My answer is Hell No.
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.
We can't let this important issue die.
Why is the word about Alito's extremism not reaching a broader audience? Is it too academic? Here is an example that less academic types may appreciate:

In the strange case of Kenneth Pirolli v. World Flavors, Inc., the Equal Employment Opportunity Commission intervened on behalf of Pirolli, a retarded man who complained of his workplace and presented "evidence that another one of Pirolli's co-workers, Harley Strauss, 'attempted to push a broom pole into (Pirolli's) behind as other staff watched." .

What was Alito's reaction? "Pirolli's brief never asserts that his work environment was one that a reasonable, non-retarded person would find hostile or abusive." .

Since Sam Alito was confirmed as a judge, he has come out as an out-of-the-mainstream radical. Since 1990, extremist Alito has

(1) broke his vow to Congress made during his 1990 confirmation hearing to disqualify himself from cases involving Vanguard (which he owned nearly a million in) when he failed to disqualify himself in violation of judicial ethics rules and, instead, decided a case in favor of Vanguard despite his prior admission in writing to Congress that he had a conflict of interest (which he did not disclose to the parties);

(2) ignored 70 years of Supreme Court precedents about the scope of congressional authority in order to try to re-write the laws regulating submachine gun sales and the Family Medical Leave Act;

(3) ignored 40 years of Supreme Court precedents about reproductive privacy and freedom in order to try to install the government as the policeman of your bedroom;

(4) repeatedly excused outrageous corporate misconduct from the legal penalties for racial and gender discrimination;

(5) revealed his 1985 Regan administration job application where Alito disclosed his politically motivated opposition to 40 years of Supreme Court precedents guaranteeing equal protection at the ballot box to protect the one-man-one-vote constitutional principle and admitted having adopted this activist agenda at least five years before he was appointed to the court of appeals (so he can no longer plausibly deny that his personal views have not corrupted his pattern of result-oriented judicial decisions).

Here are the details of several reasons why Alito is unqualified to serve on the Supreme Court ... more
Is anyone following the confirmation hearings? I was reading the GOP list of witnesses for Alito when I came upon this:

Peter Kirsanow – a Commissioner to the U.S. Commission on Civil Rights, and Partner at Benesch, Friedlander, Coplan and Aronoff LLP in Cleveland.

Mr. Kirsanow is a member of the U.S. Commission on Civil Rights and a partner with the law firm Benesch, Friedlander, Coplan, and Aronoff LLP in the Labor and Employment Practice Group. He frequently testifies before and advises members of the U.S. Congress on various employment laws and issues, and has formerly served as labor counsel for the city of Cleveland. Mr. Kirsanow is also the chair of the board of directors of the Center for New Black Leadership and is on the advisory board of the National Center for Public Policy Research. He received his B.A. in 1976 from Cornell University and his J.D. with honors in 1979 from Cleveland State University, where he served as articles editor of the Cleveland State Law Review. Mr. Kirsanow has thoroughly reviewed Judge Alito's civil rights record and will testify to his conclusions as an expert in the area of civil rights.

I find it interesting that Kirsanow is a member of the U.S. Commission on Civil Rights AND a partner in a law firm whose labor/employment law section [where he practiced] is widely known for its union-busting and aggressive, employee-hostile tactics.Kirsanow will be in the 5th panel and is a "discrimination is a thing of the past" civil rights
In following the confirmation hearings, I found one [actually several] of Alito's comments, "Curious."

He was asked about something that he wrote arguing that the constitution is silent on the "right to privacy." [And, it is] The question [and answer] was framed in terms of the "right to privacy" announced in the Rowe decision.

Alito was asked, with respect to his earlier comments, how he would approach the "right to privacy" question, if raised. Alito's response was that he would "approach with an OPEN MIND]".

It disturbs me that a SCOTUS Candidate would approach with an OPEN MIND, settled law. Would he approach the revisiting of Plessy v. Ferguson in relation to Brown v. Board of Edeucation with an Open Mind? What about the Civil Rights Act? What about the Miranda decision?

It disturbs me that a SCOTUS Candidate would place so little importance on precedent.
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