I’ve been watching and listening to the Alito hearings. It’s pretty clear that Alito, like many Bush nominees, is a guy who says what his bosses want to hear. His bragging about being a proud member of the Conservative Alumni of Princeton was certainly what the Reagan-era DOJ wanted to hear, even if he had to disavow those principles later to appear more moderate. Likewise, his “shucks, I forgot to recuse myself from the Vanguard case” defense of breaking an explicit 1990 promise to the committee he faces today rings hollow from a man of his reputed intellect.
Clearly, he’s a smart man. He’s going to get on the Court, unless there is a Herculean effort by the Democrats, which isn’t going to happen. And he’ll eventually work with Antonin Scalia to interpret the Constitution as it was written rather than as a living document to eliminate rights the Founders could not have imagined we would need in order to live up to the promise of American liberty.
And, he’s disingenuous. Saying, as he does below, that he made a promise not to rule on cases involving Vanguard expecting that promise would expire, is emblematically Bushian:
ALITO: Senator, the name “Vanguard” certainly appears on the briefs. And it appeared in the draft opinion that was sent to us by the staff attorney’s office. I just did not focus on the issue of recusal when it came up. That was an oversight on my part, because it didn’t give me the opportunity to apply my personal policy of going beyond what the code requires.
KENNEDY: So the individuals that responded on the ethical issues that were involved in this case, did they know that you had pledged and promised to this committee that you would recuse yourself?
ALITO: I believe that they did. I believe that some of them at least addressed that specifically in…
KENNEDY: Do you know specifically whether they did or not?
ALITO: I believe they addressed it in their letters, so they must have been aware of it.
KENNEDY: They understood that you had promised this committee that you would recuse yourself? Your testimony now is that those that made a comment upon your ethical behavior knew as a matter of fact that you had pledged to this committee that he would recuse yourself from the Vanguard cases?
ALITO: Professor Hazard I know addressed that directly in his letter. I think Professor Rotunda addressed it in his letter. So, obviously, if the letters addressed the issue, they were aware of what was said on the Senate questionnaire.
KENNEDY: And the final answer — we’ll move on — is that you saw the name “Vanguard” on the briefs and you obviously saw them on the opinion. You’re the author of the opinion. But your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promised to this committee that you would recuse yourself?
ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn’t come up.
And one of the reasons why judges tend to invest in mutual funds is because they generally do not present recusal problems. And pro se cases in particular generally don’t present recusal problems.
ALITO: And so no light went off. That’s all I can say. I didn’t focus on the issue of recusal.
KENNEDY: Well, this is important, when the lights do go on, and when the lights do go off. Because actually the accumulation of value of Vanguard had increased dramatically during this period of time, had it not?
ALITO: It had, Senator, but I had nothing to gain financially by…
Financial gain isn’t the issue. Rather it was a matter of keeping his word about Vanguard specifically.
If he pledges today to “keep an open mind” about abortion, the Commerce Clause and other elements of 20th century constitutional decisions, can we trust him to keep his word for three years or the duration of his service on the highest court in the land? Judging from his statements about what he believed in the past, which uncategorically dismissed the right to privacy covering abortion and his endorsement of the belief that Princeton’s standards were slipping because more women and minorities were being admitted, the reality is that he’s simply playing to his current audience, saying what he thinks they want to hear.