Non-Recusal Non-Issue

by Jonathan H. Adler

Michael Kranish of the Boston Globe has a story on yet another alleged failure of Judge Alito to recuse himself from a case due to a conflict of interest. According to the Globe, Alito was listed as “present” in 1992 on an order denying a petition for en banc review in an appeal from a case, Kopp, in which he participated as U.S. Attorney in 1987. For anyone who knows absolutely anything about federal appellate procedure, this is a complete non-issue.

Under both the Federal Rules of Appellate Procedure and the Third Circuit’s own rules (available here), there is no requirement that a vote be held in response to a petition for en banc review. Under Third Circuit Rule 9.5.4, if no sitting judge requests a response to or a vote on the petition within ten days of its filing, the petition is automatically denied. When a decision is unanimous, as this one was, it is rare that a judge will ask for a vote, so there was nothing in which Alito could really have participated. Thus, that Alito was listed as present in no way suggests that he actually participated in considering whether to rehear it. In addition, given that rehearing en banc requires the affirmative vote of all sitting members of the court, recusal from an en banc vote is the exact same as a vote against rehearing. (For example, if there are nin judges on the court, and two recuse, five votes are requires simply to rehear the case.) In sum, there is no evidence whatsoever that Alito did anything improper in this case.

As a final matter, the Globe runs the story under the headline, “Alito’s Policy on Recusals Is Questioned,” yet fails to note anyone who is questioning Alito on this point other than Senator Kennedy — and the article only reports that Kennedy is asking questions about Alito’s failure to recuse in cases involving Vanguard (another non-issue). Moreover, there is no question about Alito’s “policy” here as it is undisputed that Alito included the Kopp case in a list of matters from which the clerk’s office should recuse him as a judge. In other words, this is a complete non-story.

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