Challenging his candor and by implication his character, Samuel Alito’s critics are seizing on a handful of inconsistencies and omissions in the record to raise doubts about the judge's fitness for the Supreme Court.
By themselves, the issues seem minor:
- Shifting explanations for Alito’s participation in a 2002 case involving the mutual fund company Vanguard. Alito had pledged in 1990 to Congress that he would step aside.
- A statement that Alito did not recall his membership in a controversial conservative Princeton alumni group until recently seeing a document.
- A 1985 Reagan administration legal brief seeking the reversal of a landmark abortion rights case. The material was not sent to the Senate along with other records.
Critics of the federal appeals court judge say they detect a pattern.
“A credibility gap is emerging with each new piece of information released on Judge Alito’s record,” said Sen. Edward M. Kennedy, a member of the Senate Judiciary Committee, which is to begin confirmation hearings on Jan. 9.
“He bears an especially heavy burden at the hearings in January to explain the growing number of discrepancies between his current statements and his past actions,” said Kennedy, D-Mass.
Ralph Neas, president of People for the American Way, said that as more documents about Alito's record become public, “a disturbing lack of credibility has begun to emerge across a range of key issues.”
A White House spokesman, Steve Schmidt, said critics are “trying to smear a good man.”
Schmidt said their claims were a “recognition by the Democratic groups that there is thin gruel from which to mount a rational opposition to the Alito nomination.”
Attorney General Alberto Gonzales told reporters on Friday that a lot of information was requested and “there may be some times when people forget.“ He added, “When reminded, the key is coming forward with the information.”
Conflict of interest?
The fate of Alito’s nomination to replace retiring Justice Sandra Day O’Connor probably will be determined by his writings and formal rulings on abortion as well as the other opinions issued during 15 years on the appeals court.
Alito’s supporters say that barring an unexpected turn at confirmation hearings, he will be confirmed for the high court.
Ironically, Alito's critics find no fault with the legal opinion in the Vanguard case, and even his six-figure investment in the firm’s mutual funds has seemed a secondary concern at times.
Not so a commitment to the Judiciary Committee during his appeals court confirmation in 1990.
Alito pledged then to disqualify himself from cases involving Vanguard and three other entities.
Yet Alito was on a three-judge panel that ruled unanimously in 2002 in favor of Vanguard on a case involving the account of a deceased investor.
Subsequently, the investor’s widow sought a new review and Alito’s disqualification, citing his substantial investments.
Alito wrote the chief judge of the 3rd Circuit that he did not believe he was required to disqualify himself, although he said he was voluntarily stepping aside.
The letter did not mention the pledge he had made to the Senate, and it is not clear whether Shantee Maharaj, the woman who sought to disqualify him, knew about it.
Initially, Alito and Bush administration officials said his initial participation was the result of a computer error that had failed to flag the case.
Then, responding to a letter last month from the Judiciary Committee chairman, GOP Sen. Arlen Specter of Pennsylvania, Alito wrote that his pledge to the committee covered his “initial service” as a judge.
As time passed, he said, he realized it had been “unduly restrictive.”
But a questionnaire Alito returned to the committee last week shows that as late as 2005, he removed himself from a case involving Vanguard because it was on a “standing recusal list.”
Controversial group membership
The dispute surrounding an alumni organization is less complex.
In 1986, as part of an application for a new job in the Reagan Administration, Alito stressed his conservative credentials.
Among them, he cited his membership in the “Concerned Alumni of Princeton University, a conservative alumni group.”
The group once said school officials had lowered standards to accept female and minority applicants.
In completing the committee’s questionnaire, Alito stepped carefully around the issue.
“A document I recently reviewed reflects that I was a member of the group in the 1980s,” he wrote. “Apart from that document, I have no recollection of being a member, of attending meetings or otherwise participating in the activities of the group.”
People for the American Way announced on Nov. 18 it was seeking records at the Library of Congress that might “shed more light on the activities and ideology” of the group.
The questionnaire also requested that Alito provide legal briefs and a detailed summary of his work on Supreme Court cases.
He responded with voluminous material dating from his tenure in the Reagan Administration.
Abortion rights memo
On the same day, a 1985 memo was released separately in which he outlined a legal strategy for eroding and eventually ending abortion rights.
Sen. Charles Schumer, D-N.Y., quickly sought an explanation “for this omission.”
He wrote Alito asking whether he participated in drafting the appeal in which the Reagan administration sought the reversal on abortion.
Schmidt said Alito omitted the case because he had neither argued it before the Supreme Court nor signed his name to the legal brief.
A fellow lawyer in the solicitor general’s office, Albert Lauber, said he had been assigned to write part of the brief and that Alito offered to help.
Alito “helped with the legal research and analysis, and I think he gave me proposed inserts,” said Lauber, whose assignment did not include drafting the plea to have abortion rights ended.
Alito “made a real contribution,” Lauber said in an interview, although he added, “I wrote more than he did.”