Date: January 12, 2006
Senator: Witness - Payton
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SPECTER: Considerable amount of attention has been paid in these hearings to the recusal issue of Vanguard. Would you comment on what your committee found there?
TOBER: I'm going to defer to Mr. Payton who took the lead on the Vanguard-related issues, if that is OK with the chairman.
SPECTER: Mr. Payton?
PAYTON: We certainly looked into all of the recusal issues. We asked Judge Alito in some detail about how the Vanguard and the other recusal issues came about.
But let me put this in some context which I think will be helpful. In the materials that Judge Alito submitted to this committee, he attached a list of all of the cases from which he had been recused over his 15-year tenure. And that is 40 pages long with about 30 to 35 cases per page. It's well over 1,000 cases from which he was recused.
Among those cases that he was recused from were cases involving Vanguard in 1992, cases involving his sister's law firm throughout the tenure, cases involving U.S. attorney's office throughout the tenure, cases involving the other entities that he had identified in his representation to this committee back in 1990.
A few cases, in fact, slipped through. And that has been the subject of our inquiries and some of the testimony before this committee.
PAYTON: We asked him how that came about. He explained how he thought it came about. But I think it's fair to say he was not certain how they slipped through -- whether it was through the screen, whether it was because they were pro se cases.
In the end, he did acknowledge that it was his responsibility that a mistake and error had been made. Those cases should have been caught and he should have not heard those cases.
We listened quite carefully to all of that. And in the context in which we understood how this came about, we accepted his explanation that he simply had made a mistake. These cases should not have slipped through the screen just like the other thousand or so cases that were captured by the screen and the process, but they did; they shouldn't have. And we think that did not reflect in any significant degree on his integrity.
Let me tell you something else we did that goes to both of your questions, Mr. Chairman. We also interviewed an incredibly broad array of judges -- virtually all of the members of the 3rd Circuit, virtually all of the district judges that were in New Jersey and were in Philadelphia. We interviewed a number of the other judges in the 3rd Circuit who were on the district court who had contact with Judge Alito.
PAYTON: And what we learned from them almost unanimously was that he is held in incredibly high regard with respect to the issues that this committee, the ABA's committee, looks at: his integrity, his judicial competence and his judicial temperament.
And on the issue of the recusals, everyone thought that he has the highest integrity and that these few cases that slipped through do not diminish his integrity.
SPECTER: Thank you, Mr. Payton.
The red light went on during the course of your testimony, so I will terminate and yield to my colleague Senator Leahy.
LEAHY: Just to follow up on that, on Vanguard, the only reason I even mention this, when the initial explanations was from Judge Alito and the White House after his nomination was a computer glitch had precipitated Vanguard case.
But then he answered some questions from Senator Feingold. He said in the Monga case it wasn't a computer glitch -- his failure to submit Vanguard to the clerk of the court. And he said when it came before him he was not focused.
Since your report, checking the dates here, we've learned that Judge Alito did not have Vanguard on his recusal list as far back as 1993, not withstanding the fact that in 1990 he'd given a sworn statement to the committee that he would recuse.
LEAHY: Some of that information came after your report. Would it change anything in the conclusion?
PAYTON: Like I said, from the interview with him, I'm not sure we figured out what caused these cases to slip through. I'm not sure Judge Alito knew the precise answer to that. But he did acknowledge that it was a mistake.
On what was on his standing recusal list, I don't know what was on his standing recusal list. But I just note, in the materials that were submitted to this committee, there is a 1992 entry of an entity that has the name Vanguard in it -- and it's Vanguard -- that says "recusal because on standing recusal list."
I don't know what happened in 1993. I don't know if things went on and went off. Something went wrong here. And these cases came before him. And they shouldn't have. But they are a very small number in a huge universe of cases from which he was recused.
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