This diary is for For Justice: Day 3 regarding Alito’s violations of judicial ethics.

The following letter is ready to send to members of the Senate Judiciary Committee, as well as other Senators. Feel free to adapt it as you see fit.  Click here for Senate Judiciary Members and click here for for a list of all Senators.

(Letter follows after the break)

Dear Senator:

Justice Alito doesn’t deserve to be rewarded with an appointment to the Supreme Court for lying to the Senate.  Nor does he deserve to be rewarded with that appointment for his repeated violations of the laws and ethical codes that govern the conduct of federal judges.

In 1990, as a nominee seeking appointment to the Third Circuit Court of Appeals, Justice Alito, recognized that he had inherent conflicts of interest due to his  ownership of mutual funds managed by Vanguard, and because of his dealings with the brokerage firm, Smith Barney.  He promised that he would recuse himself from hearing any cases involving those two companies.  He also promised to recuse himself from any cases involving his sister’s law firm.  Specifically, in his questionnaire, he stated:

“I would . . . disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney or the First Federal Savings & Loan of Rochester, N.Y.”

Yet in 1996, he participated in a case in which one of the litigants was represented by his sister’s law firm, without informing the other parties to the case of his possible conflict of interest. In 1996, he also heard a case involving Smith Barney, without informing the parties of his ongoing relationship with that brokerage firm.  In neither case did he disqualify himself.

In 2002, he again failed to disqualify himself from a case involving the Vanguard companies, at a time when he held investments with Vanguard valued between $390,000  and $975,000.  In the Vanguard case, the plaintiff, a widow, challenged Justice Alito’s participation immediately upon learning of his interest in Vanguard funds, but after the three-judge panel of which Alito was a member had dismissed her appeal.  Once again, Justice Alito failed to inform the parties to the litigation of his potential conflict of interest.  It was only after being confronted with that inherent conflict by the plaintiff that  Justice Alito disqualified himself, albeit with great reluctance.

At first, Justice Alito blamed a computer glitch for assigning him a case he shouldn’t have heard, which begs the question: Why, when he saw Vanguard was a party, didn’t he immediately recuse himself as he had previously promised he would?  It’s difficult to believe he simply forgot he had a six figure investment in Vanguard funds, after all.

Now he says he had been “unduly restrictive” in promising the Senate back in 1990 that he would remove himself in cases involving Vanguard Group Inc. and Smith Barney Inc.  One can argue whether the “I changed my mind” defense invalidates a prior pledge made under oath to the Senate.  What cannot be argued however, is that his conduct in each of these cases failed to meet the standard required under the applicable ethical canons applicable to federal judges, the “Code of Conduct for United States Judges” (“Code”),  as well as the applicable federal law regarding judicial disqualification , Section 455 of Title 28 of the United States Code (28 USC Sect. 455).

Canon 1 of the Code states that “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.”  The official comment to Canon 1 spells out what this obligation entails in greater detail:

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor.  . . . Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable application of the text and should depend on such factors as the seriousness of the violation, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.

Canon 2 provides in part: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”   Its commentary states:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. . . . The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

Clearly in this instance, Judge Alito’s pattern of deception and/or inattention regarding his possible conflicts of interest in cases that appear before him degrades public confidence in the integrity and independence of all federal judges, and violated his obligation to avoid the appearance of impropriety..  First, he violated his promise to the Senate that he would disqualify himself from cases involving Vanguard, Smith Barney and his sister’s law firm.  At the very least, that in itself bespeaks an arrogance that ill becomes a man who would be a Supreme Court Justice.

Second, and more importantly from the standpoint of judicial ethics, each time a case  involving these parties was brought before him, he failed to disclose his conflict of interest to the other litigants.  By keeping these conflicts hidden, he denied them the right to challenge his participation in those cases, except for the one instance in which where the plaintiff discovered his investments in Vanguard on her own.

I can think of nothing that would impugn the integrity of the judiciary more than conduct such as this by a judicial officer.  To deliberately, or through neglect, fail to disclose to litigants that a judge may have an interest in a case causes severe damage to the public’s faith in an independent and impartial federal judiciary.  How can we trust the fairness of the decisions reached by our federal courts when the Judges ruling in those cases are hiding their own potential conflicts from parties to those lawsuits?   How can we believe that a  potential Supreme Court Justice will act appropriately and impartially in cases brought before him, when we know he has deceived the Senate in his prior nomination proceeding for appointment to the Third Circuit?

Such conduct clearly gives rise to the perception that  Judge Alito’s  “ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired. ”  What discipline is appropriate  for judge Alito’s past misbehavior is not a concern of the Senate.  However, clearly, such a person, with his history of secretive and improper conduct towards those who appear before him to argue their cases, does not deserve elevation to a seat on the Supreme Court, the highest judicial office in our country,.

Violations of  Canons 1 and 2 of the Code, however, are not the only ethical lapses by Judge Alito.  His conduct also violates Canon of the Code, as well as the provisions of 28 USC Sect. 455.  

Canon 3 provides that

C. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:  . . .

.(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

Section 455 states, in part:

(a) Any justice, judge, or magistrate judge of the United States

    shall disqualify himself in any proceeding in which his
    impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following
    circumstances: . . .

        (4) He knows that he, individually or as a fiduciary, or his
      spouse or minor child residing in his household, has a financial
      interest in the subject matter in controversy or in a party to
      the proceeding, or any other interest that could be substantially
      affected by the outcome of the proceeding;

Some have claimed that Judge Alito had no “financial interest” in Vanguard or Smith Barney under the wording of Canon 3 and Section 455(b)(4), because he did not own stock or other equity interests in those two firms.  They assert, therefore, that despite his prior promise to the Senate, he had no obligation to recuse himself from cases involving Vanguard and Smith Barney.  This argument, even if true, misses the point.  

Even assuming that, technically, he did not  have a “financial interest” as that is narrowly defined in those laws, he was obligated to disqualify himself because his impartiality in those cases could reasonably be questioned.  How do we know that?  Because he said so himself back in 1990.  He promised the Senate that he would disqualify himself specifically from any cases involving the Vanguard companies or Smith Barney, Inc.  He made it abundantly clear to the world that he considered such cases ones where the appearance of impropriety would arise.  To try to wiggle off that pledge now by claiming that his interest in those firms didn’t meet the technical definition of a “financial interest” is disingenuous, at best.  He must have thought his interest in those companies would cause reasonable people to question his impartiality, or he would never have bothered to make that promise in the first place.

In addition,  his interest doesn’t have to be a “financial interest” as that is defined under Section 455 and Canon 3  so long as it is an interest that “could be substantially affected by the outcome of the  proceeding.”  I find it hard to fathom how a six figure investment in Vanguard funds does not qualify as an interest that could be substantially affected by the litigation.  Any case decided by the Third Circuit Court of Appeals in favor of Vanguard or Smith Barney will be binding on all courts in the Third Circuit, and is a persuasive precedent in other federal courts.  Thus, any similar litigation against those two firms would have a broad reaching beneficial effect on their business by limiting the risk of similar lawsuits in the future.  To say that Judge Alito’s interest would not be substantially affected by his decision in such cases is simply naïve.  Or willfully dishonest.

Finally, I’d like to call your attention to Canon 2 C which provides:  “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  At the present time, I know of no membership by Judge Alito in any organization that practices “invidious discrimination on the basis of race, sex, religion or national origin.”  However, we do know that he was a proud member of such an organization in the not too distant past.

I refer specifically to his membership (as stated on his resume in 1985) in an organization called “Concerned Alumni of Princeton” or “CAP” for short.   For a description of CAP’s activities prior to its demise in 1986, I refer you to an article recently authored by Stephen R. Dujack, a writer and former Associate Editor of the Princeton Alumni Weekly (“PAW”) from 1976-80 who frequently  wrote about CAP in PAW and The Daily Princetonian, from which the following excerpts are taken:

From its founding in 1972 till its unlamented demise in 1986, CAP was an organization that at first openly opposed full coeducation and the representative inclusion of minorities at Princeton, and then when those became “settled issues,” continued its opposition to the mere presence of women and minorities at Princeton through tactics ranging from code words to open harassment.

 . . . Simultaneously, and with a blind eye to its perverse irony, CAP campaigned for affirmative action for alumni in the administration and faculty. CAP especially wanted affirmative action in the admissions office for its members’ kids and for those student-athletes with bad grades and board scores.

. . .  So in 2005, we know that in 1985, Alito belonged to a group that was dedicated to pointlessly interfering with the functioning of a university because its student body had representative numbers of women and minorities, as required by law. A group which, for its entire existence, used as its only tactics dissembling and dirty tricks; the list above doesn’t begin to do justice in describing the organization’s destructiveness. A lot of people were hurt in the process. A great university was damaged.

I hope you agree with me such bigoted  beliefs, and the acts perpetrated in furtherance of them, are inimical to all that America stands for, and that Judge Alito should explain in detail his past association with CAP, including whether he still holds with its discriminatory and inequitable agenda.  Further, I think, this past membership in CAP requires the Senate Judiciary Committee to thoroughly investigate whether Judge Alito’s present associations may include membership in groups who currently practice or advocate racial or gender discrimination.

Sincerely

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