Alito Case Raises Question of Conflict

Times Staff Writer

Democrats directed new attention Wednesday to the question of Supreme Court nominee Samuel A. Alito Jr.’s possible conflicts of interest, sending a letter to his supervising judge in New Jersey requesting documents related to his failure to recuse himself from a 2002 case involving Vanguard Group, the mutual fund company.

After a three-judge federal appeals court panel including Alito ruled in favor of Vanguard, the investor who sued the company objected that Alito shouldn’t have heard the case. The judge holds about $400,000 in Vanguard-managed mutual funds, according to his latest financial reports.

Chief Judge Anthony Scirica removed Alito from the case and assigned it to a new panel of judges; they subsequently reached the same judgment.


In their letter to Scirica, Democrats on the Senate Judiciary Committee asked for any documents connected to Alito’s failure to recuse himself from the case, as well as descriptions of the court’s rules and procedures for avoiding conflicts of interest.

White House spokesman Steve Schmidt defended Alito’s actions, saying that “the allegation that there’s any impropriety is absurd.”

“Judge Alito looks forward to answering questions on this issue from the committee,” Schmidt said.

Alito’s nomination has been gaining ground with Democratic and Republican senators as he has spent most of the last week meeting privately with them. Sen. Kent Conrad (D-N.D.) said he was bothered by the questions about Alito’s failure to recuse himself from the Vanguard case, but said that otherwise the judge “got off to a very good start” with him.

“It is unlikely, absent new information or a bombshell, that I would support a filibuster,” Conrad said after they met.

Because Democrats are in the minority, they have no way to stop a confirmation vote on Alito except by refusing to end Senate debate on the matter, a procedure known as a filibuster.

Alito has blamed a computer system glitch for failing to flag the Vanguard case as presenting a possible conflict of interest. Democrats have said they doubt that a computer system can be blamed. They point to a 2003 letter Alito wrote to Scirica, after the objection by the investor, in which Alito said he did not believe his ownership of Vanguard shares required his recusal. In the letter, Alito asked to be removed from the case anyway to avoid “any possible question.”

Legal scholars disagree on whether judges should always recuse themselves from cases involving mutual fund companies in which they may own shares. But Democrats said that Alito had explicitly pledged to recuse himself from any case involving Vanguard when he was being considered for appointment to the U.S. 3rd Circuit Court of Appeals in 1990.

“I do not believe that conflicts of interest relating to my financial interests are likely to arise,” Alito wrote in a questionnaire he submitted to the Judiciary Committee at the time. “I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings and Loan of Rochester, N.Y.”

Smith Barney served as Alito’s broker; the Rochester bank held his mortgage. At the time, Alito held about $80,000 in Vanguard shares. That sum has since grown to more than $390,000, he has said.

Last week, Newsday reported that Alito did not recuse himself from a 1996 case involving Smith Barney.

Meanwhile, Alito’s senior thesis at Princeton University, which had been missing, turned up on the college’s website Wednesday. It showed him favoring equal treatment for men and women in adultery cases in Italy.

Alito, the son of an immigrant from Italy, was a student at Princeton from 1968 to 1972. He received a scholarship from an outside group to study Italy’s court system. His “Introduction to the Italian Court” delved into that system’s origin, makeup and rulings, often comparing it with the U.S. Supreme Court and courts in other countries.

The most striking part of the factual report deals with Alito’s examination of the Italian court’s rulings regarding adultery and separation of church and state.

Alito agreed with the Italian court’s reversal of a decision backing legislation that penalized a wife more than her husband in cases of adultery, contending she had committed the graver offense.

“Indeed, it is absurd to argue that unequal treatment is necessary to protect the family,” Alito wrote.


Associated Press contributed to this report.