Judicial temperament

November 28, 2005|By STEVEN LUBET AND DAVID MCGOWAN

Supreme Court nominee Samuel A. Alito Jr. did not play fast and loose with judicial ethics rules in a 2002 appeal involving the Vanguard mutual fund company, as some recent reports suggest.

Eight Senate Democrats have initiated an inquiry into the case, requesting information about Judge Alito's initial decision not to recuse himself even though he held a six-figure investment in Vanguard funds at the time. They will discover that Judge Alito's conduct in the matter, though not perfect, actually provides a good example of how judges should ultimately handle financial conflicts of interest.

Here are the known facts: Since at least 1990, Judge Alito has been heavily invested in mutual funds managed by the Vanguard company, holding at least $390,000 in Vanguard funds. Nonetheless, he participated in a 2002 case in which a Massachusetts woman was suing Vanguard, joining a unanimous 3rd U.S. Circuit Court of Appeals decision in the company's favor. Judge Alito has served 15 years on that court.

But about a year later, the plaintiff learned of Judge Alito's investments and complained that he should have disqualified himself from the case. Judge Alito did not agree, but he still removed himself.

"I do not believe that I am required to disqualify myself," he wrote to his court's chief judge, "however, it has always been my personal practice to recuse in any case in which any possible question might arise." The case was then reassigned and a new panel of judges reaffirmed the original decision.

What are we to make of this? Did Judge Alito violate the rules of judicial ethics, as some have claimed? Was he right all along? Or did he simply make a mistake?

As it turns out, the judicial disqualification statute is surprisingly tricky when it comes to mutual funds. Without parsing the intricate details, it is sufficient to say that Judge Alito should not have heard the appeal if his investment in the individual Vanguard funds amounted to an ownership share in the management company itself. It is not immediately clear whether that is the case, however, at least from our examination of Vanguard's Web site and promotional materials.

But let's take the worst-case scenario and assume that Judge Alito got it wrong, sitting in the Vanguard case when he should have disqualified himself. He still did the right thing when presented with the plaintiff's complaint. He did not dig in his heels and insist that his judgment was unquestionable. He did not engage in self-righteous self-justification (as other judges have been known to do).

Instead, he voluntarily stepped back and allowed the matter to be reconsidered by other judges against whom no claim of any kind could be made. That is good judicial temperament in action.

There is one complicating factor. In 1990, when he was nominated to his current seat on the court of appeals, Judge Alito informed the Senate Judiciary Committee that he would disqualify himself "from any cases involving the Vanguard companies." By 2002, it appears that he had either forgotten about that statement or reconsidered it. But so what? The plaintiff in the Vanguard case obviously did not rely on Judge Alito's 1990 confirmation hearings and, in any event, it is not at all clear that such blanket disqualification was even required.

To be sure, it would have been better for Judge Alito to stick to his original commitment, taking greater care to avoid cases involving any relationship to his Vanguard investments. Then this issue would never have come up.

So Judge Alito is not perfect. Who is? Judges make mistakes all the time, on matters great and small. That is why we have appellate courts, and that is why there are nine justices on the Supreme Court.

The truly important question is not whether the judge made an error, but how he responded when it was pointed out to him. You do not need to be a fan of Judge Alito's jurisprudence to recognize that he is a man of integrity.

In the final analysis, Judge Alito showed admirable sensitivity to the question of recusal, agreeing to disqualify himself "in any case in which any possible question may arise." Other judges - and justices - would do well to follow that example.

Steven Lubet is a professor of law at Northwestern University. David McGowan is a professor of law at the University of San Diego. Mr. Lubet's e-mail is slubet@northwestern.edu. Mr. McGowan's is david.dmcgowan@gmail.com.

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