A curious e-mail is making the rounds from Democratic senator Ted Kennedy’s communications director, Stephanie Cutter, attacking Judge Alito’s response last week to the Senate Judiciary Committee’s request for more information about Judge Alito’s involvement in a case in Vanguard mutual funds was a party in name only. In Monga v. Ottenberg, a bankruptcy receiver sought to have a party’s IRA assets (which included funds in a Vanguard account) made available to pay the bankrupt party’s creditors. Vanguard was a party to the case because the bankrupt party sued it to prevent it from releasing his IRA funds to his creditors. In other words, Vanguard’s only interest in the case was as a third party who held funds belonging to someone else — it was going to make them available either to the creditors or to the bankrupt party, but Vanguard had no interest in the funds. When the case went to the Third Circuit, Judge Alito, who owned some Vanguard mutual funds, joined two of his colleagues in unanimously dismissing the claims of the bankrupt party. In a desperate attempt to get one last bite at the apple, the bankrupt party claimed after the case had been decided that Judge Alito should have recused because he owned some Vanguard mutual funds. Apparently giving the complaint the benefit of the doubt — though there is little question that he was not required to — Judge Alito decided that the case should be reheard by another judge.
So what is all the fuss about? Democrats complain that he should have recused because of his ownership of the mutual funds. It’s a silly charge. As several legal ethics experts have stated, Alito had no obligation to recuse, because Vanguard didn’t stand to benefit financially (or be harmed financially) as a result of the case. Vanguard was going to release the funds to someone; it was just a question of who got them. So Alito had no conflict of interest that required him to recuse. And even if it might appear that he did, he fixed the problem by having it re-argued.
This is much ado about nothing, but that doesn’t stop Senator Kennedy. Cutter points to Alito’s response to a 1990 questionnaire about recusals where Alito said he would, as an initial matter, recuse in cases involving Vanguard. The Monga case was a decade later, though, and had nothing to do with Vanguard’s (or Alito’s) financial interests. Kennedy’s office is more interested in nitpicking the content of a 1990 questionnaire then they are about reading the rules that govern judicial ethics.
What makes the Kennedy e-mail so curious is just how hypocritical it is. Judge Stephen Breyer faced much more serious complaints in his confirmation hearings about his involvement as a judge in more than half a dozen cases that involved insurance underwritten by Lloyd’s of London, an insurance syndicate in which he was an investor. As an investor in Lloyd’s, Judge Breyer faced potentially unlimited liability for the losses covered by its policies, and many investors were bankrupted by their participation in Lloyd’s syndicates. The New York Times labeled Judge Breyer’s alleged conflict as “troubling” and a “cloud . . . hanging over his nomination,” but guess who was his most ardent defender? Yes, the same Teddy Kennedy, who even got into a heated argument with one of his Democratic colleagues on the committee: “You’ve asked for my opinion whether Judge Breyer’s committed a violation of judicial ethics in investing in Lloyds name and insurance underwriting while being a federal judge. In my opinion, there was no violation of judicial ethics.”
Where’s that Senator Kennedy today? Hiding behind a staffer’s underground e-mail trying to take the legs out from under a nominee who has extraordinary credentials and equally sterling integrity. We’re not buying Cutter’s bogus charges. Just like Senator Kennedy didn’t buy the New York Times’s attacks on Justice Breyer. Let it go, Teddy.
– Edward Whelan is president of the Ethics and Public Policy Center and a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.