Alito's Sock Drawer

If you can't beat him on philosophy, try ethics.

Sunday, November 13, 2005 12:01 a.m.

Supreme Court nominee Samuel Alito must be sailing toward Senate confirmation. We say this because his opponents--who know they can't beat him on credentials or judicial philosophy--are now rolling out the "ethics" machinery.

The eight Democrats on the Senate Judiciary Committee wrote last week to the chief judge of the Third Circuit Court of Appeals demanding more information about Judge Alito's participation in a 2002 case called Monga v. Ottenberg. On Thursday, Chairman Arlen Specter urged the nominee to give a "full public response" on this and another business case in which he participated even though, Mr. Specter wrote, "it is my conclusion that there has been no impropriety on your part." You can say that again.

Bear with us while we recount a few of Monga's gory details, for that's the only way to understand how absurd the conflict-of-interest accusations are. The case concerns a litigious widow, Shantee Maharaj, who was trying to get a federal court in Philadelphia to enjoin the Vanguard investment company from paying her late husband's creditors, as ordered by a Massachusetts state court. The court had found that the IRAs her husband had set up--some of which were invested in Vanguard mutual funds--were the product of fraud and therefore should be available to pay creditors.

The federal judge in Philadelphia dismissed the case, which then went to the Third Circuit, where Judge Alito sat on the three-judge panel that unanimously dismissed it. Next stop was the Supreme Court, which declined to hear it. It was at this point that Ms. Maharaj claimed that Judge Alito should have recused himself because he was invested in mutual funds managed by Vanguard.

Let's consider this proposition. Mutual funds are diversified securities portfolios managed by an investment company. Investors in, say, IBM, are owners of IBM. But investors in a Vanguard fund are not "owners" of Vanguard--which is precisely why many judges choose to invest in mutual funds. A mutual fund is a way for judges to avoid a conflict of interest that would result from investing directly in companies that might be implicated in cases that could come before them.

Geoffrey Hazard, an expert on legal ethics, put it this way in a letter to Mr. Specter: "Having a Vanguard mutual fund is not owning an interest in the Vanguard managing company, any more than having a bank account in a commercial or savings bank involves an ownership interest in the bank." Under the governing rules for the Code of Conduct for United States Judges, Mr. Hazard says, Judge Alito's participation in Monga was "not improper." The judge had no personal financial interest in the outcome of Monga.

After Ms. Maharaj requested his recusal, Judge Alito wrote a letter to the chief judge of the Third Circuit, saying that he did not believe his ownership of shares in mutual funds managed by Vanguard was a reason for disqualification. Nonetheless, he voluntarily recused himself from the decision about whether to rehear the case. The appeals court did decide to rehear it, and another panel again dismissed it unanimously.

That would be that, except for Senator Ted Kennedy, who is making a big deal of an answer Judge Alito gave on a form he filled out in 1990. The judge was up for confirmation to the appeals court at the time, and he was asked how he would handle any conflicts during his "initial service" on the court. Judge Alito had replied that he would recuse himself in cases involving Vanguard and Smith Barney, which was his brokerage firm.

In a letter replying to Mr. Specter late last week, Mr. Alito explained that "as my service continued" on the appeals court he "realized that I had been unduly restrictive on my 1990 questionnaire." Under any judicial rules or code of conduct, there was no legal or ethical reason for him to recuse himself from cases involving Vanguard and Smith Barney. If such a standard did hold, we'd add, then only judges who kept their savings in mattresses or sock drawers would be deemed worthy of confirmation to the High Court.

This is all common sense, but we rehearse it in detail to signal the barrage that may be coming in the next two months. Liberal interest groups are becoming frustrated as they realize they won't be able to defeat Judge Alito over abortion or civil rights or anything of judicial substance. But they're more determined than ever to take him down. "You name it, we'll do it," declared Nan Aron, head of the Alliance for Justice that works hand-in-glove with Senate Democrats. But that doesn't mean the rest of us should believe any of it.