Not only Pa. Gov. & former DNC Chairman Rendell endorsed Alito, but former NJ Governor Brendan Byrne and current Gov. Corzine's legal counsel did the same. Alito is very favorably viewed by those who have appeared before him and there are many prominent Democrats in the 3rd Circuit who support Alito. There's something to be said for one's own experience outweighing the interest group caricatures.
Attorneys in the Clinton White House Counsel's office helped his S. Ct. nominees, too, and it was the same for previous administrations. I doubt they talked about the other issues that the WH Counsel was involved in. This is a non-story & raising it has lawyers in Washinton thinking some Senate Democrats have lost sight of reality.
More time won't help Judiciary Committee Democrats unless they use it effectively, and so far they haven't. There's not much basis for thinking it will get better since the MSM & legal commentators are mostly giving the win to Alito.
Dems appear to be just going through the motions, not even staying once they've asked their questions. Not what you want to do if you're contending something important is going on and the outcome is in doubt.
It's OK for this place to have a point of view, but when the Roberts hearings were blogged, it was presented as if Committee Democrats were winning a decision, when just about every other source had Roberts by a knockout. There's a need for some realism in the presentation.
I think a lot of folks on this site were out of touch with reality on the John Roberts nomination, and relied way too much on the interest group "talking points" that were in many cases not very accurate. Something similar appears to be happening on the Alito nomination. Alito received a unanimous Well Qualified rating from the ABA today. At a minimum, that does a lot to remove the rather spurious allegations of ethical misconduct by Alito.
While it is true that the hearings are yet to come, those who have seen Alito in action seem confident that he will be up to the challenge. While Alito may not be quite as smooth in his presentation skills as John Roberts, his legal ability is on a par, and I think he's likely to be confirmed with at least 65 votes. In the long run, that will actually be good for Dems, assuming folks think there will soon be Democratic Presidents who will have S. Ct. vacancies to fill.
Well, it's not my data, it's from the Mine Safety & Health Administration, part of the Department of Labor. While the number of miners has declined, the numbers from the Bush years were similar to the last 2 years of the Clinton Administration, when fatalities were higher. I'm sure the "research" could be improved if we had the hours worked or even the tons of coal mined, but I used what is readily available. My main point was that diarist didn't even bother to do that, but just made the type of knee-jerk criticism that often actually ends up benefiting Bush.
There were an average of 38.75 coal mine fatalities per year under Clinton, compared to 29.8 under Bush. Even if you just compare the last 5 years of Clinton, fatalities were lower under Bush. Reflexive anti-Bush sentiments aren't a substitute for actual research - shooting from the hip ends up making Bush look better than may be otherwise warranted.
--> Samuel Alito's move to the floor is blocked by Lincoln Chafee.
If that is meant to suggest there would be a vote against Alito in the Judiciary Committee, can't happen since Chafee isn't on the Committee. More generally, don't expect Chafee to vote against Alito unless he bombs out in the hearings, which isn't likely. Rhode Island has the greatest percentage of Italian-Americans of any state, and Chafee faces primary opposition from the right. Politically, the smart vote for Chafee is to confirm.
Barely retaking the House while falling short of a majority in the Senate would under-perform the historical norm for the six-year, off-year elections of most Presidents since FDR, so a well-run campaign could do better. However, given how poorly Dems fared in the 2002 off-year election, I think most would gladly settle for the House and gaining a few Senate seats.
Alito was on the Supreme Court brief for the case, which had already been made public. The only thing the memo adds is showing that Alito argued for raising a more narrow argument than what was ulttimately put in the brief.
This wasn't really a wiretap case, since DOJ wasn't arguing that the wiretaps were legal, just that the former Attorney General was immune from suit for money damages. The S. Ct., with Rehnquist recused, agreed with DOJ, albeit on a more limited basis than DOJ had argued.
Does anyone think the DOJ position would have been any different if it had been a Bobby Kennedy ordered wiretap at issue? The brief raised the DOJ's institutional position. This really isn't news & the diary is trying to make something of next to nothing.
There doesn't appear to be any good news for Democrats. This is a district that gave Kerry 40% of the vote, Young got 28%. Granted turnout is a lot different in a special election, but Young was heavily touted in the Democratic blogosphere as an effective candidate. Doesn't look like he was able to motivate Democrats to turn out. Not a good sign for the "run everywhere" strategy, but it's early.
This race may also be a sign that it's premature to write-off the GOP's chances in 2006.
There aren't going to be many Red State Democrats who'd support a filibuster, and without them the numbers aren't there. My guess is at least both Nelsons, Dorgan, Conrad, Baucus, Pryor, Landrieu & Byrd will actually vote to confirm, even more would vote for cloture.
The Boston Globe article has just a passing reference to Alito not recusing in Vanguard. No specifics, I'm afraid. If you want to find that persuasive, so be it.
However, here is the vastly more persuasive reasoning of one of the experts referred to above:
Honorable Arlen Specter, Chair
United States Senate Committee on the Judiciary
Dear Mr. Chairman:
Recent press accounts suggest that some believe it was improper for Judge Samuel Alito to have participated in a case called Monga v. Ottenberg, decided by a panel of the Third Circuit in 2002. In my opinion, there is no basis for suggesting his action was in any way improper.
To briefly suggest my background to draw such a conclusion, I have taught and written in the field of legal and judicial ethics for over thirty years. The law school text that I co-author has long been the most widely used in the country, and it covers judicial ethics in considerable detail.
Judge Alito's required annual financial disclosure forms list among his holding several Vanguard mutual funds that offer diverse kinds of investment products. Some of the funds are shown as valued in the range $15,000 to $50,000; others are in range $50,000 to $100,000.
Based on the relatively sketchy reports we have available, the Monga v. Ottenberg case arose after Mr. Monga's business failed. A Massachusetts court appointed Mr. Ottenberg as receiver. Mr. Ottenberg claimed that certain Individual Retirement Accounts (IRAs) had been created by fraudulent transfers and thus that their assets should be available to pay creditors. The Massachusetts court agreed with him and so ordered. The IRAs were invested in several mutual funds, including some managed by Vanguard.
Even prior to that adverse ruling, Mr. Monga had filed collateral proceedings in federal court in Philadelphia seeking to enjoin the mutual fund companies from paying the accounts over to Mr. Ottenberg. That case had been dismissed in 1996, shortly before Mr. Monga's death. Later, in 1998, the Massachusetts state court had enjoined Mr. Monga's widow, Ms. Maharaj, from filing any other such action in any state or federal court.
The case on which Judge Alito sat was an appeal from the decision of Federal District Judge Hutton granting the motions of Vanguard and Founders Funds to dismiss yet another collateral federal action and to allow the companies to comply with the Massachusetts order. It
should not be surprising, given the repeated factual findings in favor of Mr. Ottenberg, that the Third Circuit panel consisting of Judges Alito, Fuentes and Roth unanimously affirmed Judge Hutton without published opinion. The Supreme Court denied certiorari.
As apparently a last ditch effort to keep her case alive, Ms. Maharaj then sought to reopen the case by suggesting that because Judge Alito had owned Vanguard mutual funds at the time of the Third Circuit decision, the result was somehow tainted. Thus, a different panel of the Third Circuit reheard the case and unanimously reached the same result, again in an unpublished opinion. The Supreme Court again denied certiorari.
The relevant statutory provision, 28 U.S.C. § 455, requires a federal judge such as Judge Alito to disqualify himself (a) "in any proceeding in which his impartiality might reasonably be questioned," or (b) if he "has a financial interest in * * * a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."
Part (d) of § 455 then defines "financial interest" to mean "ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a `financial interest' in such securities unless the judge participates in the management of the fund."
The best technical argument that Judge Alito did something wrong seems to be that he had a "financial interest" in "a party to the proceeding," because Vanguard was technically one of the defendants in the collateral proceeding for injunction that was on review. The argument collapses, however, in view of the clear statement in § 455(d) that ownership of a mutual fund is expressly not a financial interest "unless the judge participates in the management of the fund."
I have seen it suggested that Vanguard apparently regards its mutual fund purchasers as "owners" in the same way that mutual insurance companies call their policyholders "owners." In both situations, investors or policyholders may "own" the company in some theoretical sense, but that fact no more makes Judge Alito part of the "management of the [Vanguard] fund" than a policyholder could be said to "manage" his or her insurance company. There is, in short, simply no way that Judge Alito fits within the prohibition of 28 U.S.C. § 455.
Further, and going more to the real issue in any ethics charge, it is absolutely clear that there is no way Judge Alito stood to profit from deciding the Monga case one way rather than another. Putting aside the infinitesimal share of the Vanguard funds that Judge Alito owned, Vanguard had no material stake in the outcome of the Monga case. Vanguard presumably wanted the case to be over; that is likely why it moved to dismiss the federal proceeding. But Vanguard held money that belonged either to Mr. Monga, or to the receiver Mr. Ottenberg.
Nothing that Judge Alito did or could do would change the fact that the money did not belong to Vanguard or Vanguard's theoretical "owners" such as Judge Alito.
There is thus no actual or technical substance to the suggestion that Judge Alito did something wrong in hearing the Monga case. One may say that judges must avoid even "the appearance of impropriety," but no reasonable person could believe that Judge Alito violated even that standard. It should not "appear" improper to decide a case which the judge has no incentive to decide other than in accordance with the law.
Finally, I have seen it said in the media that Judge Alito promised your Committee at the time of his confirmation in 1990 that he would recuse himself from "any cases involving the Vanguard companies." I have not seen the context of that "promise," but I greatly doubt that your Committee understood it to require more than the law governing disqualification requires.
In any event, even if Judge Alito had undertaken special responsibilities involving disqualification in cases in which Vanguard appeared in any form, I do not see his failure to recuse himself in the Monga case as other than one of the inadvertent failures to disqualify that occur from time to time because of the volume of cases and press of business in the federal courts. In 1997, for example, press reports said that Justice Ginsburg had participated in some twenty-one Supreme Court cases involving companies in which her husband held stock. The mistakes were clearly inadvertent, did not affect any result, and no one saw the incidents as suggesting anything other than oversights to be avoided in the future.
The name of the Monga case was Monga v. Ottenberg. The names of Vanguard and the other mutual funds appeared later in the case title to be sure, but it was obvious to everyone that they were not the real parties in interest. The decision in question ultimately turned on the finality of Massachusetts state court rulings in a dispute between two individuals, Monga and Ottenberg. It is thus utterly unjustified to call Judge Alito's participation in that case a conflict of interest or a breach of faith with this Committee.
In my opinion, Judge Alito's participation in the Monga case was in no way improper, nor does it give any reason to doubt that he would fully comply with his ethical responsibilities if he is confirmed as an Associate Justice of the United States Supreme Court.
Thomas D. Morgan
George Washington University Law School