Since Democrats appear to be heavily pursuing the charge that Judge Alito failed to recuse himself from a case involving Vanguard and other companies, it might be worth investigating. I haven’t had a chance to look into it independently, but Baseball Crank has. As a good place to start, I recommend his analysis of the controversy.
Questions: does anyone know if Senators have money invested in Vanguard? If so, have any of them voted on legislation that might affect Vanguard? Might such legislation have a bigger effect on Vanguard than a legal dispute over $170,000?
These seem like relevant questions. Let’s find out the answers. I’ll link any post that provides useful and accurate information that sheds light on the matter.
UPDATE: Why limit it to Vanguard? Let’s look at any financial holdings that Senators might have that could be affected by their votes. Since Russ Feingold seems hot to trot on the issue, his most recent financial disclosure might be a good place to start.
UPDATE x2: Here is an opinion letter from a George
Washington Mason law professor saying that Alito had no duty to recuse himself. (Via Howard Bashman.) One significant point: the law in this area has been clarified substantially since 1990, when Judge Alito said he would recuse himself from Vanguard cases. This is important because, as the professor explains:
It is not reasonable to argue that, in 1990, Judicial Nominee Alito was “promising” never to hear a case involving Carpenter, Bennett & Morrissey, or Vanguard, no matter what was the state of the law or the facts in the ensuing years. His 1990 statement, in context, can only mean that based on the law and the facts at the time as he understood them, he would — out of an overabundance of caution — not hear cases involving Smith Barney, Vanguard, or the law firm of Carpenter, Bennett & Morrissey. If the facts or the law would change, then the result would change. For example, if his sister no longer was working at Carpenter, Bennett & Morrissey, then he would no longer disqualify himself from hearing cases from that firm.
Similarly, if the law subsequently became clear that recusal was not necessary — and the professor argues that it did — that would change the context of Alito’s promise as well. If the professor’s analysis is right, then there was no need for him to recuse himself at all. Still, as the professor says, Alito later recused himself anyway in an abundance of caution, because
it was his personal practice to recuse himself when a party raised an issue and “any possible question might arise.”
Thereafter, “[t]he case was sent to a new panel and it came out the same way.”
I predict that this issue will not gain much traction.
UPDATE x3: Here is a letter from Geoffrey Hazard, which says that Judge Alito had no duty to recuse himself, but that he made an “insignificant” mistake in making the 1990 promise to recuse himself from Vanguard cases when it wasn’t necessary. Prof. Hazard says this should lead to no more than “mild criticism” and was handled properly by Judge Alito’s subsequent decision to recuse himself.
UPDATE x4: Still more support for Alito’s position here.