Alito Defends His Actions In Two Appeals Court Cases

By Charles Babington
Washington Post Staff Writer
Friday, November 11, 2005

Supreme Court nominee Samuel A. Alito Jr. said yesterday that he did nothing improper when he ruled in cases involving two financial firms in which he held accounts, although he had told the Senate 15 years ago that he would step aside in matters involving the companies.

Alito, trying to quell conflict-of-interest issues raised by liberal opponents, said he had been "unduly restrictive" in promising in 1990 to recuse himself in cases involving Vanguard Group Inc. and Smith Barney Inc. After the Senate confirmed him as an appellate judge and when he subsequently ruled on routine cases involving the two companies, he said, he acted properly because his connections to the firms did not constitute a conflict of interest under the applicable rules and laws.

Alito had at least $390,000 in Vanguard mutual funds when he ruled in a 2002 case that favored the company. After a party to the suit complained, he stepped aside and another panel of judges reheard the case. Alito also ruled in a 1996 case involving Smith Barney, which was his brokerage firm.

The Supreme Court nominee's comments, made in a two-page letter to Senate Judiciary Committee members, differed from the White House's explanations of his actions. The White House said last month that a courthouse "computer screening program" had failed to alert Alito to step aside in the Vanguard case. Alito made no reference to computers in yesterday's letter. He said he went further than he needed to in 1990 when he promised to avoid ruling in cases involving Vanguard and Smith Barney.

"To the best of my knowledge, I have not ruled on a case for which I had a legal or ethical obligation to recuse myself during my 15 years on the federal bench," he wrote.

Alito's letter added a second defense that the White House had not pressed earlier. The 1990 Senate questionnaire dealt with possible conflicts during his "initial service" on the appellate court, Alito noted. "I respectfully submit that it was not inconsistent with my questionnaire response for me to participate in two isolated cases seven and thirteen years later," he wrote.

Democrats and liberal groups have not suggested that Alito could have benefited from the rulings in the Vanguard and Smith Barney cases. Rather, they have questioned why he ruled in the matters after telling the Senate -- in the 1990 confirmation process for his nomination to the U.S. Court of Appeals for the 3rd Circuit -- that he would recuse himself in cases involving Vanguard, Smith Barney and his sister's law firm.

Democrats have focused on the recusal questions in recent days, as criticisms of Alito's judicial philosophy have had little effect. Sen. Kent Conrad (D-N.D.), speaking with reporters this week after meeting with Alito, said he told the nominee: "You are ultimately the check on whether or not you kept your pledge. You indicated you would recuse yourself, and then did not."

Alito's comments were in response to a letter sent to him earlier in the day by Judiciary Committee Chairman Arlen Specter (R-Pa.). Specter urged the nominee to "make a full public response" regarding his rulings in the Vanguard and Smith Barney cases. "It is my conclusion that there has been no impropriety on your part," Specter wrote.

Democrats said yesterday that they plan to ask Alito about his role as a judge in a 1995 case that involved a client of his sister's law firm. Rosemary Alito belonged to the New Jersey firm of McCarter & English LLP when it represented Midatlantic National Bank in a legal dispute with a borrower. After a three-judge panel, which did not include Samuel Alito, ruled against the borrower, the plaintiff appealed to the entire 3rd Circuit court. Alito was among the 15 judges listed as "present" in the court's denial of the request for a rehearing.

Alito continued his rounds of courtesy calls on senators yesterday, and once again lawmakers from both parties praised his intellect and experience. "You can't ignore that there's an abundance of talent in this individual," said Sen. Frank Lautenberg (N.J.) , a liberal Democrat who voted against Chief Justice John G. Roberts Jr.'s confirmation in September.

© 2005 The Washington Post Company