Dueling Alito Ads
January 5, 2006
A liberal ad suggests Alito can't be trusted. A conservative ad says he's admired. We supply context.
Summary
A liberal group's ad says Supreme Court nominee Samuel Alito didn't keep his word when he took part in cases he had promised to avoid while a conservative ad quotes a "respected" journalist calling Alito "widely admired" and "fair-minded."

Both ads are accurate as far as they go, but there's more to it than either of these 30-second spots can tell. We supply details.

Analysis
The liberal coalition IndependentCourt.org released a 30-second ad on Jan. 4 questioning whether Alito can be trusted to keep his word, saying he broke a 1990 promise to step aside from cases that might pose a conflict of interest. IndependentCourt.org is a project of the Coalition for a Fair and Independent Judiciary, whose members include People for the American Way, the American Civil Liberties Union, the AFL-CIO, Moveon PAC, NARAL Pro-Choice America and others. Their 30-second ad, "Keep," is set to air on national cable news and locally in Maine and Arkansas.
IndependentCourt.org’s
Ad: “Keep"

Announcer: Americans believe if you give your word, you ought to keep it. And that’s what’s disturbing about George Bush’s Supreme Court pick, Samuel Alito.
Alito promised to disqualify himself from certain cases.
(On Screen 1990 Senate Questionnaire)
But news reports reveal he “broke his own commitment”
(On Screen: Houston Chronicle 11/8/05)
…three times….
(On Screen: Boston Globe, 12/6/05)
Even ruling in favor of a company he invested with…
(On Screen: Washington Post, 11/1/04)
Then gave three different excuses why.
(On Screen Washington Post, 12/2/05)
His actions were called “troubling”
(On Screen Philadelphia Inquirer 11/5/05)
And “poor judgment.”
(On Screen Houston Chronicle 11/8/05)
Shouldn’t we be able to trust Supreme Court nominees to keep their word?
(On Screen: Paid for by IndependentCourt.org)

A Broken Promise?

The ad begins with images of ordinary Americans.  An announcer saying that "Americans believe if you give your word, you ought to keep it."

The ad refers to Alito's failure to disqualify himself from certain cases in spite of a promise he made in 1990, when the Senate was considering his nomination to the Third Circuit Court of Appeals. Alito promised the Judiciary Committee in a written questionnaire:

Alito: I do not believe that conflicts of interest relating to my financial interests are likely to arise.  I would, however, disqualify myself from any cases involving  the Vanguard companies, the brokerage firm of Smith Barney , or the First Federal Savings and Loan of Rochester, New York.

I would disqualify myself from any case involving my sister's law firm, Carpenter, Bennett & Morrissey, of Newark, New Jersey.

The ad states that Alito "broke his own commitment . . . three times." It quotes newspaper accounts that called Alito's actions "troubling," saying he showed "poor judgment." It concludes: "Shouldn’t we be able to trust Supreme Court nominees to keep their word?"

In fact, Alito did participate in cases involving Vanguard and Smith Barney. He may also have participated in a third case involving his sister's law firm, though there is no record of him voting in the case, and Alito says he has no memory of it.

Generally, Alito says his promise to the Senate covered only his "initial" service on the court, and these cases came years later. He also says none of them posed any financial conflict for him or required his recusal under judicial ethics rules. "To the best of my knowledge I have not ruled on a case for which I had a legal or ethical obligation to recuse myself during my 15 years on the federal bench," he said in a letter to Pennsylvania Sen. Arlen Specter, chairman of the Judiciary Committee.

Here are details of the three cases:

  • Vanguard: In Monga v. Ottenberg, Alito was part of a unanimous three-judge panel that in 2001 ruled in favor of Vanguard, dismissing a suit by a Massachusetts woman who wanted the assets of the retirement funds of her late husband Dev Monga. Lower courts had ruled the funds must go to pay creditors of Monga's bankrupt company. Monga's widow moved to have the case heard anew, with Alito disqualified. Alito – in a 2005 statement to the Senate Judiciary Committee – says "I took the extra and unnecessary step of requesting that a new panel of judges be appointed to rehear the case." The second panel also ruled in favor of Vanguard, again unanimously. Alito notes that the several hundred thousand dollars he then owned in Vanguard mutual funds were not an issue in the case, and says they didn't pose any conflict for him.
  • Smith Barney: Alito also sat on a panel in 1997 that decided Johnston v. Smith Barney. Alito has said the case posed no conflict. "I hold no interest in the firm itself," he said in a  November 2005 letter to Judiciary Committee Chairman Specter.
  • Sister's law firm: Alito may have participated i n a 1995 case in which the Third Circuit ruled in favor of a bank represented by McCarter & English, which then employed Alito's sister Rosemary. Alito is listed as one of 14 judges "present" when the court denied a borrower's petition for a rehearing. Only one judge – not Alito – voted in favor of a rehearing. There is no record of Alito voting, since only votes in favor of a rehearing are recorded in such cases. Dana Perino, a White House spokeswoman is quoted in the Nov.10 Boston Globe as saying that Alito "does not have any recollection of that case." Alito's sister says she was "absolutely not" personally involved in the case, according to the Globe.

Democrats are criticizing Alito for hearing cases he said he would not. The ranking Democratic Member of the Senate Judiciary Committee, Patrick Leahy (D-VT) said, "He made it very clear he would not hear any cases with those people.  [This] is something that obviously is going to be an issue at the hearing."

A "Drip" of Attacks

The Progress for America Voter Fund on Jan. 3 released "Drip" and said the ad would run for nine days, at a cost of $500,000, on CNN, Fox News Channel, and local cable stations in North Dakota, Maine, and Louisiana.

Progress for America
Ad: "Drip"

(On Screen: Image of a dripping faucet)
Announcer: Everyday desperate liberals make up a steady drip of attacks against Judge Samuel Alito.

Want the truth?
Respected Supreme Court analyst Stuart Taylor, of the non-partisan National Journal, Alito "is widely admired by liberals, moderates, and conservatives, who know him well as fair-minded, committed to apolitical judging, and wedded to no ideological agenda other than restraint in the exercise of judicial power."
Confirm Judge Alito.
(On Screen: PFAvoterfund.com

Paid for by Progress for America Voter Fund)


An Accurate Quote 

The ad opens with an image of a dripping faucet as an announcer says that "everyday, desperate liberals make up a steady drip of attacks against Judge Samuel Alito. Want the truth?" It then quotes a Dec. 10 article by Stuart Taylor, a writer for the National Journal.  The quotation used by the PFA ad is accurate and in context. Taylor's article flayed general news accounts of the Alito fight for adopting the line of what he called "liberal ideologues." Here is the quote in broader context:

Taylor: The systematic slanting -- conscious or unconscious -- of this and many other news reports has helped fuel a disingenuous campaign by liberal groups and senators to caricature Alito as a conservative ideologue. In fact, this is a judge who – while surely too conservative for the taste of liberal ideologues –  is widely admired by liberals, moderates, and conservatives who know him well as fair-minded, committed to apolitical judging, and wedded to no ideological agenda other than restraint in the exercise of judicial power.

"Respected" and "Non-Partisan?"

The ad describes Taylor as a "respected" Supreme Court analyst, and his publication as "non-partisan." But liberal groups now question that. IndependentCourt.org published a rebuttal arguing that Taylor is not as non-partisan as the ad leads viewers to believe, pointing out that in April 1998 Taylor was courted by independent counsel Ken Starr to be a senior adviser on the Whitewater investigation. Taylor turned down the position but neglected to reveal the job offer to his readers when, a few days later, he wrote an article saying Starr "is everything that [President Bill] Clinton is not: honest, principled and utterly inept at spin."  When word of the job offer leaked out, the National Journal skipped one of Taylor's columns, and he eventually apologized to his readers for failing to realize the need to for full disclosure.

Nevertheless, Taylor's articles have at times been harshly critical of the Bush administration. He  called Bush's nomination of Harriet Miers "foolish" and "self-indulgent," and also said Bush and Vice-President Cheney need "adult supervision" concerning their approach to U.S. torture policy. And in the very article quoted by the ad, Taylor concludes by slamming Bush's intelligence and morals:

Taylor: Meanwhile, lest this column be dismissed as pro-Bush propaganda, I hereby associate myself with a comment by Walter Murphy, the distinguished constitutional scholar who was Alito's thesis adviser at Princeton University: "I confess surprise that a man so dreadfully intellectually and morally challenged as George W. Bush would want a person as intellectually gifted, independent, and morally principled as Sam Alito on the bench."

- by James Ficaro

Update (1/19/2006): Our original article garbled the sequence of events regarding Stuart Taylor's job offer from Ken Starr. We now have them in proper order.

Sources
Stuart Taylor, " A Sampling of Misleading Media Coverage ," National Journal, 12 Dec 2005.

Press Release , "IndependentCourt.org Ad Buy on Alito's Record Asks Whether Americans can Trust Him with Seat on Supreme Court," Coalition for a Fair and Independent Judiciary, 4 Jan 2006.

Press Release , "PFA-VF Says Consider the Source," Progress for America Voter Fund, 3 Jan 2005.

Michael Kranish, " Alito Reviewed '95 Case Involving Sister's Firm ," Boston Globe, 10 Nov 2005.

Confirmation Hearing on Appointments to the Federal Judiciary, Committee on the Judiciary U.S. Senate March/April 1990.

Samuel Alito Questionnaire, U.S. Senate Judiciary Committee 2005.