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L'affaire Vanguard, and more on the Alito hearings

Without any legitimate means to attack Alito, the early indications are that the Democrats are going to try to hang the hat of "appearance of impropriety" on Alito over his vote in a Vanguard case (Nov. 6; Nov. 11). (Senator Feingold had the gall to compare it to recent indictments and guilty pleas of elected officials, though I'm not sure what Jack Abramoff was ever elected to.) Professor Ronald Rotunda (via Bainbridge) deftly disposes of the "controversy":

The judge�s ownership of shares in a mutual fund (e.g., the Vanguard Index Fund) is not an ownership interest in the Vanguard Company itself anymore than my ownership of a saving account makes me an equity owner of the Saving Bank.

In other words, the ethics rules make clear that a �depositor in a mutual savings association, or a similar proprietary interest [e.g., Vanguard], is a �financial interest� in the organization only if the outcome of the proceeding could substantially affect the value of the interest.� Judge Alito�s decision in a case that a pro se litigant filed and lost at every level, was not a case where the outcome of the proceeding could �substantially affect� the value of his Vanguard mutual funds. Indeed, the judge simply had no financial stake in this case. ...

In the case in question, after the pro se litigant lost her case, she asked Judge Alito to recuse himself. The pro se litigant alleged that Judge Alito had a financial interest in a party; that he owned shares in a party; and even that he was a party himself! All those allegations were false, but he promptly recused himself anyway because it was his personal practice to recuse himself when a party raised an issue and �any possible question might arise.� The case was sent to a new panel and it came out the same way.

So far, in the first day of hearings, we see several Alito-opponent misrepresentations that could have been avoided by regular perusal of Point of Law: Senators Schumer and Feinstein argue that Alito held that Congress could not regulate machine guns (false); Senator Durbin raises the one-man/one-vote bogeyman (refuted); Senator Feinstein raises the Alito voting record on discrimination (refuted).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.