Date: January 12, 2006
HATCH: I'll reserve my time, thank you.
SPECTER: Thank you.
KENNEDY: Thank you very much.
Did you know, Mr. Tober, that the Vanguard Ventron (ph), which is the case of 1992, actually involved the carpentiers (ph) -- that names the carpentiers (ph) which were on the Alito list for recusal.
TOBER: We weren't...
KENNEDY: And I think for the most -- Mr. Payton, maybe this should be directed to you -- in that most of the people that have looked through there in detail feel that reason that that was actually recused is because the carpentiers (ph) -- at least I think it's spelled carpentiers (ph). Yes. C-A-R-P-E-N -- carpentier (ph). And that was the reason it was under the name of the Vanguard.
You're familiar with that?
PAYTON: Yes. I simply thought that it was unclear whether or not what would have caused that to be kicked off because of the standing recusal list was any hit with Vanguard or something else.
It's unclear. You cannot tell from what is there.
KENNEDY: Did the committee know when it inquired of the nominee that the Judge Alito had made a promise to the committee under oath that he was going to recuse himself from Vanguard?
PAYTON: And we asked him about that.
KENNEDY: And did he indicate -- what was his response?
PAYTON: His response was that it was a mistake for those cases to have slipped through. That was not just a question about what the code said but also what his representation to this committee encompassed, that it was a mistake.
KENNEDY: And was the mistake, did you understand it, is because he didn't for one reason or another, neglected to put Vanguard on his recusal list?
PAYTON: No, I don't think I could say it that concretely. The mistake was that it got through. Why it got through, I think it was not completely clear to us. I'm not sure it was clear to Judge Alito. It got through.
KENNEDY: Well, it wasn't on his '93, '94, '95, '96 list, and the '93 says no changes were made from '92. And he got on the bench -- so there's just one year, a year and a half...
PAYTON: Don't know...
KENNEDY: I don't have the record on it. And I was just wondering, in your inquiry and review of that case, since that is the principle source, as I understand it, of revenue -- I mean, it's had sizable increases in the revenue from the time he took that oath till the more recent years. So that's one of the factors on it.
And I was just interested when you said it was a mistake -- that you made a determination detection, because we have not been able to find that it was ever put on. And, quite frankly, at least as a member of the committee, we've heard a number of reasons for it. We've heard computer glitch.
KENNEDY: We've heard that it was an interim pledge and a commitment. We have heard that it was a pro se case and therefore we didn't have -- the computers don't exist in the 3rd Circuit the way they do in law firms here in Washington, D.C. (inaudible).
And I'm just trying to find out what was told to you.
I think, to be very honest about it, if it had been said it was a mistake in the very beginning, I don't even think this issue would have taken more than 30 seconds of the committee's time.
But since we've had so many different reasons for it which we've been trying to ascertain exactly what had happened, and particularly since it was a pledge to the committee and it was a sworn statement to the committee that we were wondering what the Bar Association in its...
PAYTON: Senator Kennedy, I don't know the answer to your question.
I don't believe that what you just said about what was on the list in 1993-'94 was known then. I was unaware of that. And I'm not sure Judge Alito knew that.
But in our discussion with him, we actually cut right through that and simply wanted him to tell us if he agreed this was a mistake -- "Did you just miss it?"
"Yes, I just missed it. It was a mistake."
And the why, then, sort of became less significant.
KENNEDY: Well, of course, Mr. Payton, he did. During that same period of time he took a name off the list, so he must have been familiar with it. He took the U.S. attorney name's off the list.
We went through this. I'd be glad to make available to you -- just you've indicated that you'd gone through the hearings on this and I'd welcome the opportunity just to make available to you the same material and to get your response.
PAYTON: Senator, we indicated in our letter of explanation, as we always do, that we continue to monitor these proceedings.
KENNEDY: Thank you.
PAYTON: And we'll be happy to revisit anything the committee wishes us to look at.
KENNEDY: I want to join in thanking you for the service of the Bar Association. This is a very challenging and, in many senses, thankless job. But I think the country's much better off and so is the judiciary. And I thank you for your service.
PAYTON: Thank you.
(UNKNOWN): They're all billable hours, Mr. Chairman.