Something interesting happened during the final round of the Senate Judiciary Committee's questions for Samuel Alito Thursday.
After Senator Ted Kennedy hammered Judge Alito yet again over participating in a case involving the Vanguard Mutual Fund--in which the judge was an acknowleged investor--Senator Orrin Hatch threw back at Kennedy the name of Justice Stephen Breyer.
Hatch remembered something Democrats on the Judiciary Committee seemed to have forgotten: When Breyer was nominated by President Clinton to the Supreme Court in 1994, he, too, faced conflict-of-interest charges over investments. Questions, Hatch recalled, "were raised about the propriety of him hearing a case in which some argued--falsely, I think--that he had a financial interest."
I listened with some bemusement to Hatch's attempt to defuse Alito's Vanguard troubles. It was in part my reporting which in 1993 raised the question of then-nominee Breyer's investments. Going over his financial disclosure forms, I found he seemed to have concentrated his considerable wealth in industries with a stake in the cleanup of Superfund toxic-waste sites. To an invesigative reporter this was intriguing, because as a federal judge Breyer sat on at least five Superfund cases while maintaining these investments.
Hatch's argument Thursday was that such conflicts of interest were small potatoes for Breyer then and small potatoes for Alito now. (He also was taking a subliminal swipe at Ted Kennedy; Justice Breyer was once Kennedy's counsel.) In fact, Hatch pointed out, the same judicial ethics expert--Professor Geoffrey Hazard of the University of Pennsylvania--cleared both nominees.
Hatch neglected to mention that back in 1994, one revered Senate Judiciary Committee member, Ohio Democratic Senator Howard Metzenbaum, thought that such a conflict of interest was far from small potatoes, and asked tough questions during Breyer's confirmation. (It would be refreshing if even one Republican senator showed the independence of Metzenbaum sweating a nominee of his own party.) And once Justice Breyer was confirmed, he promptly sold off the offending stocks.
Hatch also neglected to mention that back in 1994, one of the country's most respected ethics scholars--Professor Monroe Freedman of the Hofstra law school, author of the standard judicial ethics text--wrote a passionate, ten-page letter to the Judiciary Committee opposing Breyer's confirmation.
It's salutory, in trying to sort out the signficance of Alito's Vanguard mess, to go back over Monroe Freedman's letter about then-Judge Breyer. Freedman pointed out that the basic purpose of recusal laws is to ensure public confidence in the judiciary and avoid even the appearance of conflict of interest. By neglecting to recuse himself from cases connected to his investments, Freedman wrote, the judge "caused the very 'suspicions and doubts' about the integrity of judges that the Statute was enacted to avoid."
And--hear this, Senator Hatch and Judge Alito--Breyer's Alito-like refusal to recognize any problem greater than "imprudence" only "reinforces these doubts."
If the Breyer recusal controversy never got far in 1994, it is perhaps because whatever his strengths and flaws, Breyer's confirmation was otherwise untouched by ethical controversy.
By contrast, both Alito and his handlers have crafted a confirmation campaign that reeks of disingenuousness and ethical compromise. Thursday brought an unprecented parade of judges, violating specific ethics canon to line up as character witnesses for a judge who may soon be judging their own cases. There's Senator Lindsey Graham, who, it turns out, secretly offered his services as Alito's coach. Senator, what were you possibly thinking, and who was bending your arm?
There's Alito himself, straining credulity by claiming ignorance of why he boasted of membership in Concerned Alumni of Princeton at the height of the group's notoriety for misogynist and racist rants; there are his endless shifting excuses for each of his many extreme and controversial statements. Against Roe? Just angling for a job. Fulsome praise for Robert Bork? I was just an Administration lawyer praising the Administration's nominee.
Most of all there's the systematic misrepresentation of Alito's jurisprudential zealotry, his attempt to paper over a disdain for precedent so profound that he's routinely slapped by other judges.
You've got to ask what about a nominee would so persuade the White House and its allies to bend rules and truth--and what would persuade Republican senators to accept it. Alito's failure to recuse himself over Vanguard Mutual Fund may well have been, as the judge insists, an oversight. The corruption of the confirmation process by Alito and his handlers isn't. Alito may sail through as securely as Breyer did in 1994. But when it comes to ethics, this confirmation stinks.