Democrats Press Court Designee Over Mutual Fund Case - New York Times

Democrats Press Court Designee Over Mutual Fund Case - New York TimesNovember 10, 2005
Democrats Press Court Designee Over Mutual Fund Case
By SHERYL GAY STOLBERG

WASHINGTON, Nov. 9 - Laying the groundwork for a possible strategy of attacking Judge Samuel A. Alito Jr., Senate Democrats are ratcheting up their questions about the judge's failure to disqualify himself from a case involving Vanguard, the mutual fund company that managed his investments.

While Judge Alito, President Bush's choice for the Supreme Court, continued Wednesday to pay courtesy visits in the Senate, all eight Democrats on the Judiciary Committee sent a letter about the Vanguard case to Judge Anthony J. Scirica, who is chief judge of the United States Court of Appeals for the Third Circuit, where Judge Alito sits.

The letter asked for documents relating to the Vanguard case, including records of "any communication between Judge Alito and you, any other member of the court, or the court's staff" discussing a promise by Judge Alito in 1990, made in a Senate questionnaire submitted as part of his appeals court confirmation, to recuse himself from matters involving Vanguard.

Senator Harry Reid of Nevada, the minority leader, circulated a so-called talking points memo to fellow Democrats on Wednesday titled "The Alito Alert," raising questions about the Vanguard case.

There were also signs that concerns about the case were spreading beyond the judiciary panel, to Democrats who might otherwise be inclined to support Judge Alito's candidacy.

One such Democrat, Senator Kent Conrad of North Dakota, spoke highly of Judge Alito after an hourlong meeting and said he would be "very unlikely" to back a filibuster blocking the nomination. But Mr. Conrad said he was troubled by Judge Alito's handling of the Vanguard matter.

"That bothered me," Mr. Conrad said. "He said, Well, there was a computer glitch, or one thing or another. I said, 'Well, I understand all those things, but ultimately you are the check on whether or not you kept your pledge. You indicated you would recuse yourself and you did not.' I must say, that troubles me. It doesn't unduly concern me, but it troubles me."

Two experts in judicial ethics, whose views were solicited by Senator Arlen Specter, the Pennsylvania Republican who heads the Judiciary Committee, have said Judge Alito had no obligation to recuse himself from the Vanguard case.

One of the experts, Geoffrey C. Hazard Jr., a professor at the University of Pennsylvania law school, said he has known Judge Alito since the judge was a law student, and the other, Ronald D. Rotunda, teaches at George Mason University, where he is a colleague of Michael E. O'Neill, Mr. Specter's chief counsel.

A White House spokesman, Steve Schmidt, accused Democrats of trying to smear the judge. "It is worrisome that there may be an effort under way by Democrats to try to cut up the judge and attack his integrity, and try to blemish a career of public service where his integrity has never been questioned," Mr. Schmidt said. "His integrity is beyond reproach. There is no substantive basis at all to any allegation of impropriety."

The case involved a woman who said Vanguard had improperly denied her funds that belonged to her late husband. After the woman complained about Judge Alito's participation in the case, he stepped aside, and the matter was reheard.

The judge has told senators, including Mr. Conrad, that a court computer program designed to flag potential conflicts had failed to do so.

The Vanguard issue also came up Wednesday in Judge Alito's meeting with Senator Charles E. Schumer, Democrat of New York. Mr. Schumer said afterward that he thought the judge's explanation "was plausible" but that he wanted more information "to check out the facts and see if it backs up the answer."

Senator Edward M. Kennedy, Democrat of Massachusetts, has also made an issue of the case and sent Judge Alito a letter about it on Tuesday.

Democratic investigators on the Judiciary Committee are looking into at least two other matters in which, they say, Judge Alito appears to have failed to keep promises to disqualify himself.

One case, reported this month by Newsday, involved a suit against Smith Barney, another brokerage firm that handled some of Judge Alito's investments.

In another case, not previously reported, Judge Alito took part in a 1995 decision of the full court of appeals involving Midatlantic National Bank, which was represented by a law firm in which his sister, Rosemary, was a partner.

In the 1990 questionnaire, when his sister was with a different law firm, Judge Alito pledged to disqualify himself from any case involving that firm.

Democrats said the issue was not whether Judge Alito had a conflict, but whether he had kept his promise and had taken all precautions to prevent a conflict.

Mr. Schmidt, the White House spokesman, said that Bush administration officials knew of both cases and that neither posed a conflict.

Judge Alito, Mr. Schmidt said, "had no ethical obligation to recuse himself from a case involving his sister's firm unless his sister represented a party in the proceeding."