Justice Breyer has been called “one of the ‘parents’ of the federal sentencing guidelines” by one commentator. In 1984, as chief counsel to the Senate Judiciary Committee, he was deeply involved in crafting the Sentencing Reform Act that gave birth to them. Later, as a Circuit Court judge, he was a member of the first Sentencing Commission which promulgated the guidelines and gave them their structure. In 2004, with Breyer now an Associate Justice, cases squarely challenging the constitutionality of those guidelines were accepted by the Supreme Court for review. Justice Breyer not only declined to recuse himself; last term, he wrote the 5-4 majority opinion in the portion of the Booker and Fanfan cases that preserved the guidelines from what would otherwise have been complete oblivion.

I am not saying that Justice Breyer violated judicial ethics by sitting on a case involving a subject in which he was deeply invested – albeit professionally, not financially. He obviously considered the potential conflict and the appearance-of-impropriety standard, and sat on the case because he believed he could be fair and impartial. I have no doubt Justice Breyer made that decision honorably.

But I do think it’s fair to consider: Ted Kennedy is desperately spinning a conflict of interest out of Vanguard despite the fact that Judge Alito was apparently unaware of a Vanguard connection in the case, recused himself upon learning of it, and had the case reconsidered by a new panel to insure there was not even an appearance of impropriety. How does that stack up against Justice Breyer’s quite conscious decision to both participate and be the difference-maker in the case examining the validity of guidelines he helped write?