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Sen. Kennedy Letter to Judge Samuel Alito

Tuesday, 06 December 2005 12:00 AM

December 5, 2005

Judge Samuel A. Alito Jr. 357 U.S. Post Office and Courthouse Federal Square and Walnut Street Newark, NJ 07101

Dear Judge Alito:

Your statements to members of the Judiciary Committee, your November 10th response to our letters to you, Judge Scirica's November 22nd response to our inquiries, and your response last week to the Committee's Questionnaire have left the Vanguard case recusal issue even more problematic than when the issue was first raised.

In the hope that we will not have to spend a great deal of time on this subject at January's hearings, I urge you to provide prompt and clear written answers to the many remaining questions about your failure to recuse yourself in 2002 when you were assigned Third Circuit Case No. 01-1827, involving three named Vanguard companies.

The central issue is that you have given at least six different answers to the basic question of why you not only sat on the case, but presided, signed orders, and joined an opinion upholding Vanguard's position in that case:

1. The "Initial Service" Explanation Your November 10th letter suggests that your 1990 commitment to the Judiciary Committee to "disqualify myself from any case involving the Vanguard companies" was only a temporary one which you could dissolve at any time, and did not apply after your "initial service" as a judge. (a) However, neither the question we asked about the "procedure you will follow" to resolve potential conflicts of interest, nor your answer in 1990, had any time limitation. If your financial interest in the Vanguard companies had ended, no one doubts that your recusal plans would have changed. But your Vanguard investments rose from about $80,000 in four Vanguard funds, at the time of your commitment, to what is now over half a million dollars in 12 Vanguard funds, so this was clearly not a temporary or disappearing financial interest. (b) Moreover, your answer to Question 23 of the Committee's Questionnaire makes clear that when the passage of time justifies a change in your recusal practices, you specifically notify the Court's Clerk of that fact, as you did when you adjusted your recusal practice in cases involving your former office. You have not provided evidence of any such justification or notification before the 2002 Vanguard case. (c) In fact, the evidence is to the contrary, Appendix 4 of your response to the Committee Questionnaire shows clearly that your "standing recusal list" continued to include the Vanguard companies during the entire period of your judgeship, up to the present. In fact, you were recused in 2005 in cases involving Vanguard Group, Inc., and Vanguard Fiduciary Trust Company, two of the same Vanguard parties named in the earlier Vanguard case that you failed to recuse yourself in.

Our Question: Would you agree that the "initial service" explanation was not the actual basis for your failure to recuse in 2002, and can you tell me when and how this rationale originated?

2. The "Oversight" Explanation Your letter of November 10 states that, "Due to an oversight, it did not occur to me that Vanguard's status in the matter might call for a recusal." This explanation suggests that your failure to recuse yourself was inadvertent and was the result of an oversight by you or someone else, rather than a decision by you not to recuse yourself. Perhaps this is your version of the explanation originally offered by the White House that a "computer failure" or "glitch" left you ignorant of your own Vanguard investments or of Vanguard's status as an interested party in the case. If so, the explanation hardly suffices. (a) Even if the Clerk's office or its computer had failed to remind you that your recusal list included Vanguard and that three Vanguard companies were named and interested parties in the case, as all judges are frequently reminded in such situations, you nevertheless remain fully responsible for noticing and acting on that fact yourself. You knew of your large and growing Vanguard investments because you were required by the judicial canons of ethics to pay close attention to your investments, and because you submitted updated financial disclosure forms and recusal lists at least annually. (b) In your initial meeting on the case in April 2002, the panel you headed decided not to hold oral argument, a decision your court's rules allowed you to make only "after examination of the briefs and records." In the papers you received, the name Vanguard appeared 19 times on the covers of the main briefs in the case, and over 400 times altogether in those papers, including repeated mentions in the lower court opinion you were reviewing. Vanguard appeared in the caption and opening text of the opinion you yourself signed and, we understand, were responsible for. Included in those papers were Vanguard's required corporate disclosure form, which explained in detail the relationship of the named Vanguard parties to the Vanguard funds you owned. The specific purpose of this form is to provide judges with the facts they need about the corporate parties before they sit on a case involving the parties. You also personally ruled on motions and signed orders that identified Vanguard prominently.

Our Question: The "computer glitch" or "oversight" explanation is insufficient on its face, since regardless of a failure in the Clerk's automatic process for recusals, you remained personally responsible for knowing and acting upon the relevant facts. Again, please state when and how this rationale originated, and whether you agree that it is not the actual reason that you did not recuse yourself in 2002.

3. The explanation that "mutual funds I own were not at issue" In your November 10th letter, you suggest that the particular Vanguard funds you owned "were not at issue in this lawsuit" and that you did not have a substantial financial interest in the case. But as you well know, you did not tell the Committee in 1990 that you would only recuse yourself in cases involving those particular funds or that you would recuse only in cases where your interest in the outcome of the case was substantial. You said you would recuse yourself as to "all Vanguard companies." Moreover, the basic requirement of the law is for judges to recuse themselves if they have any ownership interest in a party, "however small." (a) As Vanguard's disclosure made explicit, two Vanguard parties in the case were wholly owned subsidiaries of a list of Vanguard funds including the 10 or more you owned at that time. As recently as this year, the Clerk's office interpreted your recusal list to require your recusal in those parties' cases. So clearly your decision to sit on the 2002 Vanguard case could not be validly based on this reasoning. (b) You have not suggested that you made any effort to research this issue before you sat on the case. Your letter says that you "reviewed the applicable ethical rules and guidelines" only after the appellant raised it over a year after your decision in Vanguard's favor. At that time, the instructions for use of the "Checklists for Financial and Other Conflicts of Interest," which the Judicial Conference of the United States disseminated widely to federal judges beginning in 1999, clearly described the precise type of ownership structure used by the Vanguard funds and their management company, and said that "that company should be included on the conflicts list." A 1998 opinion (#57) by the Judicial Codes of Conduct Committee had reached a similar conclusion. Those would have been the most recent authorities in 2002 before you sat on the case, and remained so in 2003 when you reviewed the matter.

Our Question: Obviously none of these technical issues were the basis for your decision to sit on the case in 2002, since the possibility of recusal "did not occur to" you. But when the issue was raised in 2003 after your decision for Vanguard, what did your review of the issue include beyond Vanguard's brief defending your failure to recuse yourself, and did you consider the guidances noted above?

4. The explanation that "I voluntarily recused myself" once a complaint had been filed. To suggest that your recusal, over a year after you decided the case in favor of a company in which you had invested hundreds of thousands of dollars, was entirely voluntary seriously misrepresents your options at the time. (a) First, the statute in force then and now begins with the general rule that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The 2000 ABA Model Code of Judicial Conduct, considered an important guideline for applying this law, comments that "A judge should disclose … information that the judge believes the parties or their lawyers might consider relevant to the questions of disqualification, even if the judge believes there is no real basis for disqualification." Even if the subjective rule is the only possible ground for disqualification, a judge cannot sit unless the parties waive the issue "after a full disclosure of the record" by the judge. There can be little doubt that had you discovered the problem before the Appellant did, and had you disclosed both your interests and your promise to the Committee, as the Model Code provides, there would not have been a waiver by the parties, and you would have been required to recuse yourself. (b) Second, you say to me, as you said to the Chief Judge in 2003, that your personal practice is "to recuse myself 'when any possible question might arise.'" (The inner quote is from your 2003 letter.) But this means that were it not for your "oversight" in 2002, you would have been obligated under your practice to recuse yourself when you were first assigned the case. Whatever the objective rule or the subjective rule required, it would have been clear that a "possible question might arise" if the appellant discovered your Vanguard holdings before you disclosed them to the parties.

Our Question: At any time before the Appellant's motion to disqualify you, did you discover the Vanguard problem, and do you agree that if you had disclosed it to the parties, as the Model Code required, there would not have been a waiver?

5. The "Harmless Error" explanation Your letter suggests that because the panel was unanimous, your vote did not affect the outcome, and therefore that you took an "extra and unnecessary step of requesting that a new panel of judges be appointed to rehear the case." (a) Actually, your letter to the Chief Judge, after your participation had been challenged, merely stated that your post-decision recusal "will of course necessitate the reconstitution of a panel to consider the pending motion" to disqualify you and vacate your decision. Chief Judge Scirica reconstituted the panel to consider the motion to vacate, then vacated your opinion and ordered the new panel to take whatever steps were appropriate in the case. He certainly did not treat your participation in the case as harmless error. (b) As you may recall, the Appellant's Motion anticipated this issue, and cited several cases at the Circuit and Supreme Court level, persuasively rejecting the "harmless error" theory in these circumstances.

Our Question: When and how did the "harmless error" suggestion in your letter originate? Do you think it justifies an otherwise erroneous decision to sit? After reflecting on the precedents on the subject, do you understand why courts, including the Supreme Court, have insisted on properly constituted panels as a prerequisite to effective judicial action?

6. The "Pro Se" explanation In conversations with at least two Senators, you suggested that the fact that the Appellant in the Vanguard case was acting "pro se" (without a lawyer) had some impact on your failure to recuse yourself. Chief Judge Scirica and the Clerk have explained the pro se process to me, and I see nothing in it that would explain that failure. (a) The case file, including the corporate disclosure statements intended to alert judges to overlooked recusal issues, was distributed to the panel. In this case, the file included key papers with hundreds of references to Vanguard, briefs and memoranda signed by Vanguard, and a detailed and relevant Vanguard disclosure statement that should have been read by every member of the panel. The pro se panel had to review the file to make its decision on oral argument, to decide motions, to determine whether to adopt the staff attorney's draft opinion, revise it or re-write it, and to deal with post-decision rehearing motions. The rules are clear that no matter how late in the process a potential conflict is discovered, the prescribed remedial action must be taken (b) The fact that the Clerk's office uses its own process to make its own initial recusal decisions does not relieve a judge in either a pro se or a counsel case from vigilantly checking for conflicts of interest especially in a pro se case, in which the litigant is less likely to know of a judge's recusal history or financial disclosures.

Our Question: Is there something else in the way that pro se cases are actually handled that would explain why the clear potential for conflict in 2002 and the clear need for some action to resolve the potential conflict were not recognized by you?

In the interests of a smoother and less confrontational confirmation process, I look forward to your prompt answers to these questions, and to the still unanswered questions and requests in our prior letter, especially our request for your recusal lists.

If you have any questions about this letter, please feel free to call.

With respect and appreciation,

Sincerely,

Edward M. Kennedy

Cc: Senator Arlen Specter, Senator Patrick Leahy, The White House

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December 5, 2005 Judge Samuel A. Alito Jr. 357 U.S. Post Office and Courthouse Federal Square and Walnut Street Newark, NJ 07101 Dear Judge Alito: Your statements to members of the Judiciary Committee, your November 10th response to our letters to you, Judge...
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Tuesday, 06 December 2005 12:00 AM
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