What the ABA Found
While I'm not shocked that the Democrats want to air their political and philosophical differences with Judge Alito, I do think that their effort to smear Alito's character is appalling. For the record, here is what the American Bar Association reported on that subject, including the ABA's analysis of the cases that the Dems are using to smear Alito:
1. IntegrityThe matter of integrity is self-defining. A nominee’s character and general reputation in the legal community are investigated, as are his or her industry and diligence.
Judge Alito enjoys an excellent reputation for integrity and character, notwithstanding a widespread awareness of the Vanguard and Smith Barney recusal issues.[1] During his personal interview with us, Judge Alito was asked about the recusal matter in detail, and he acknowledged at length that he takes the matter of recusal “very seriously,” and that the cases had “slipped through” the court screening process. He explained the following to us:
The Vanguard matter. In 2002 Judge Alito sat on a pro se panel in Monga v. Ottenberg, an unreported decision. He told us that the Circuit’s conflict screening system is not used for pro se cases, and while Vanguard is identified in the caption of the case, by 2002 for reasons unknown to him, Vanguard was no longer on the permanent recusal list that would have been picked up by “automatic screening.” Judge Alito acknowledged to us that, consistent with his earlier response to the Judiciary Chairman’s letter of November 10, 2005, “Due to an oversight, it did not occur to me that Vanguard’s status in the matter might call for my recusal.”
Judge Alito wrote the opinion that affirmed the dismissal of the underlying action, which was issued in July 2002. The Supreme Court denied certiorari in April 2003. Thereafter the plaintiff filed a motion to vacate, claiming that Judge Alito was an owner/investor in some of the Vanguard funds. As a result, Judge Alito took steps to notify the Chief Judge of the Circuit that he was disqualifying himself from the case even though he did not believe that he was required to do so, and further requested that a new panel of judges be appointed to rehear the matter. A new panel was indeed appointed which heard the matter on the pleadings and affirmed the decision of the trial court dismissing the case.
The Smith Barney matter. In 1997 Judge Alito participated on a panel in Johnston v. HBO Film Management. Smith Barney is identified in the caption of the case. Apparently no party or anyone else made an issue of Judge Alito’s involvement at any time during the adjudication of the case. He told us that once again this case had “slipped by” and it was unclear to him why the screening system had not picked it up. He also told us, as he did in reply to the Judiciary Chairman, that he does not believe that the Judicial Code of Conduct or other parallel statutory language required him to be disqualified. Nonetheless, he did not seek to avoid responsibility for the concern that may have been created.
The Midlantic matter. The original case in Midlantic National Bank v. Hansen was heard by a three-judge panel. At that time Judge Alito’s sister, who is a practicing lawyer and who (along with her firm) is on his permanent recusal list, was not with the law firm that was involved in the case. She joined that firm at the rehearing stage, but was not a participant in the rehearing. Judge Alito did not participate in the panel decision, but during the rehearing phase his vote was counted on the rehearing petition because his vote was registered by default rather than by an affirmative announcement, pursuant to established Circuit court practice. He told us he did not believe that the screening system is used for rehearings, although it had been used for the original hearing, and that he simply “missed it” when he let his vote be recorded on rehearing.
The nominee’s answers to the 2005 Senate Questionnaire make it clear that, aside from these identified instances, a considerable number of matters are caught in the conflicts screen—many in the categories in question. Judge Alito explained to the satisfaction of the Standing Committee the special circumstances that resulted in the screen not working or otherwise not being applied in these limited matters, and he further accepted responsibility for the errors. We accept his explanation and do not believe these matters reflect adversely on him.
To the contrary, consistent and virtually unanimous comments from those interviewed include:
“He has the utmost integrity. He is a straight-shooter, very honest, (and) calls them as he sees them.”
“His reputation is impeccable.”
“You could find no one with better integrity.”
“His integrity and character (are) of the highest caliber.”
“He is completely forthright and honest.”
“His integrity is absolutely unquestionable.”
“He is a man of great integrity.”
On the basis of our interviews with Judge Alito and with well over 300 judges, lawyers, and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity.
