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Much Ado about Almost Nothing

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The Boston Globe reports that Judge Alito has another non-recusal problem.

This one involves a law firm in which the Judge's sister worked. The firm had won a case before a 3rd circuit panel (which did not include Judge Alito). The losing side petitioned for en banc review before the entire 15 member court. This case is, if possible, more de minimis than the earlier one involving Vanguard Funds. Let me quote from the Globe report:

The US Court of Appeals for the Third Circuit, acting as a full court, denied a borrower's petition for a rehearing in the case. The bank that held the loan, MidAtlantic National Bank, was represented by Rosemary Alito's firm [McCarter & English of Newark -- it is conceded by all that Ms. Alito had no involvement in the case].

The decision by the full court in the case lists Samuel Alito and 14 other judges as being ''present" and notes that one judge -- not Alito -- said the case should be reheard. It lists McCarter & English as the counsel for the bank. The decision -- which supported the bank's position -- provides no indication that Alito or any other judges recused themselves.

Dana Perino, a White House spokeswoman, said last night that Alito ''does not have recollection of this case."
Perino said a majority of the court denied a rehearing without providing a vote tally. ''The only ones recorded are those that vote yes," for a rehearing, she said.

Perino said the law firm of Rosemary Alito did not file a brief in the full court appeal, suggesting that Samuel Alito may not have been aware of the connection. She said a computer program now in use to prevent conflicts of interest had not been established for such cases.

It is not clear that Judge Alito participated in this decision in any meaningful sense at all. His "sin" may have been to be totally unaware of the case, and to have failed to be obsessed with his sister. This kind of desperate searching for tiny imperfections suggests that the judge will have little trouble in the Senate. If this is all that obstructionists can come up with, a collective "puh-leese" seems in order.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.