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From reckless to absurd -- Criteria for judicial nominees

By Marion Edwyn Harrison
web posted December 5, 2005

Scarcely indulging a Thanksgiving respite, the militant leftwing continues to flay in every direction at the Samuel A. Alito, Jr. Supreme Court of the United States nomination. Never mind that his judicial colleagues, attorneys who have appeared before him, attorneys who have argued with him, attorneys who have argued against him, all commend his objectivity, scholarship and ability.

The meanest, and the great mass, of these leftist attacks emanate from the usual organizations and individuals outside the United States Senate. Judge Alito's sins are manifest: He is a practicing Roman Catholic. His 90-year mother, accosted by the media, said he personally believes abortion is sinful. He adjudicates a case upon the law and record before the Court of Appeals upon which he sits in light of the applicable precedents. He endeavors to adjudicate, not to legislate. He is scholarly. Before he was elevated to the Bench, to quote a New York Times (November 20, 2005, at YT 17) headline, "In 12 Arguments Before the Supreme Court, Alito Drew Praise for Preparedness and Style[.]"

Leave it to the eight Democrats serving upon the Senate Committee on the Judiciary to add a touch of humor of the absurd to the allegations against him – probably a sign of their desperation. They wrote to Judge Alito's Chief Judge (United States Court of Appeals, Third Circuit, comprising Delaware, New Jersey, Pennsylvania) questioning the propriety of Judge Alito's having served on a panel in a jurisprudentially insignificant 2002 case denominated Monga v Ottenberg. A widow, quite litigious, sued in United States District Court in Philadelphia to enjoin Vanguard, an investment company, from complying with a Massachusetts State Court decision. That decision had ordered certain funds in her late husband's IRA account, some of which were invested in mutual funds which Vanguard managed, to be paid to the late husband's creditors because he fraudulently had acquired the money to buy them. The Federal District Court dismissed the case. The Third Circuit, Judge Alito on the three-Judge panel, unanimously affirmed the dismissal. The Supreme Court of the United States declined to issue a writ of certiorari – that is, declined to consider the case. After all that, the widow popped up with a new claim: Judge Alito should have recused himself because he also owned some mutual funds managed by Vanguard.

Pragmatically, so what? Every Judge who considered the case, including two unanimous three-Judge panels, ruled the same way.

But, gee whiz, conflict of interest? Mutual funds are diversified securities portfolios merely managed by an investment company. An investor in Vanguard doesn't own any Vanguard stock; he may be said conceptually to own a fractional interest in the stocks in which Vanguard invests. The investor has no say as to Vanguard management or ownership, as he also has no say in what stocks Vanguard invests or in any company in which Vanguard invests. Similarly, if you have a bank account and deposit some bucks in your account you don't thereby own any stock in the bank or have any say in how the bank is run. Not surprisingly, judges often invest in mutual funds to avoid a real or imagined conflict of interest. The fiasco should have stopped long before the widow's belated complaint. It went even further. The widow sought reconsideration by the Court of Appeals. Judge Alito voluntarily recused himself from reconsideration. Once again three Federal Judges tossed out the case.

One must wonder. Is it more damaging to the judicial confirmation process for militant leftist organizations vicariously to flay a nominee with wild, emotional and irrelevant (and often well-financed) accusations over the Internet, TV and the print media or for apparently desperate Democratic Senators to indulge the absurd? Perhaps if there were some such Senators who themselves had been lawyers, judges, academics and/or legal scholars of substance they would recognize, and hence forego, their reckless foolishness.

The Senatorial test for evaluation of a nominee of the President of the United States for the Supreme Court should be clear, objective, rational, reasonable. Is the nominee's legal scholarship adequate? Is the nominee objective? If, as is likely if not universal, the nominee has a judicial record, has the nominee adjudicated cases based upon the evidence and the law as enacted (which includes, when applicable, precedents and/or legislative intent) and upon the narrowest feasible grounds required to do justice, devoid of personal opinion? If, as is even more likely, the nominee has a litigating record, have the nominee's written and oral arguments manifested competence as an advocate and the fullest reasonable and ethical exposition of the client's position? If, as also often is likely, the nominee has written opinions as an attorney to clients (including governmental officials), have those opinions reflected the foregoing criteria? An objective United States Senator, doing his duty, looks to the nominee's opinions, briefs, law-review or similar articles, occasionally to the nominee's lectures. The Senator does not look to made-up ethical breaches, much less to loud and scurrilous assaults from organizations which exist for the purpose of trying to create an activist, legislative Federal Judiciary.

Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation.

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