The Washington Post’s tempest in a teapot for Tuesday is over the fact that Judge Alito participated in a case in which the Vanguard mutual fund group was involved. Alito at the time owned somewhere between $390,000 and $975,000 in shares in various Vanguard funds. The other litigant was one of his fellow shareholders whose funds had been seized by Vanguard, she claimed illegally. Alito ruled the seizure was legal. Certainly not a ruling in his own interest given that Vanguard had exactly the same sort of control over several hundred thousand dollars of his money.
The Post didn’t include the actual name of the case, so I can’t look it up, but I suspect this was one of those “name the broker, every officer of the company and the President of the United States as defendant and hope somebody will settle” type suits. I find it a little odd that judge’s have to have a computer program (as the Post reported) to tell them when there’s such a conflict, but the fact that such a program exists and that the program failed to catch the conflict, as did the aggrieved shareholders lawyers until a year later, makes it look to me like not much of a mistake. Add to that the fact that he clearly ruled against his own interest and you have to conclude that either there really wasn’t a conflict, he didn’t realize there was a conflict or he ruled based on the law in spite of the conflict.
George Washington University constitutional law professor Mary Cheh said she agreed that “even though these are broadly held funds . . . if you are aware of the holdings, you should recuse yourself because you stand to benefit one way or the other. That would be the ordinary course” for a judge with such investments.