Democrats seek answers from Alito on Vanguard case

WASHINGTON -- Two top Democrats on the Senate Judiciary Committee said yesterday they want more answers from Supreme Court nominee Samuel A. Alito about why he did not initially recuse himself from a case involving the Vanguard mutual fund company, even though he promised the Senate in 1990 that he would disqualify himself from such cases.

''It is a legitimate and serious issue to be raised, and I think his explanation is going to be extremely important," Senator Patrick Leahy, a Vermont Democrat, said in a telephone interview. Referring to the initial White House explanation that a computer program failed to warn that Alito was assigned a Vanguard-related case, Leahy said, ''It has to go well beyond a computer glitch."

Senator Edward M. Kennedy, Democrat of Massachusetts, sent a letter to Alito yesterday asking questions about the matter. A new background paper on the issue produced by Kennedy's office noted that the 1969 Supreme Court nomination of Clement Haynsworth was defeated after questions arose about whether he had a financial conflict of interest in a case. The Kennedy paper said the Code of Judicial Conduct requires that a judge disqualify himself if he has a financial interest in a party to the case, ''however small."

Kennedy asked in his letter whether Alito informed court officials of his pledge to disqualify himself from Vanguard cases.

The chief circuit judge, Anthony J. Scirica said in a telephone interview he did not know that Alito made the 1990 commitment. But Scirica said that he did not believe Alito needed to disqualify himself. ''I didn't think then and I don't think now that it was necessary to recuse," Scirica said.

In 1990, when Alito's nomination as a federal appeals judge was before the Senate, Alito promised he would disqualify himself from ''any cases involving the Vanguard companies." But after Alito ruled in Vanguard's favor in a 2002 case, he complained about an effort by the plaintiff to remove him from the case, writing to Scirica in 2003: ''I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares." Nonetheless, Alito said, he would remove himself ''to avoid any possible question."

Alito owned between $390,000 to $975,000 in Vanguard shares at the time of his ruling.

Vanguard says an owner of mutual funds shares is an owner of the company. But Alito's supporters said he did not personally benefit from the ruling. In the case, a Massachusetts woman, Shantee Maharaj, was seeking the assets in a retirement account established by her late husband.

Kennedy said the White House has given two rationales for Alito's involvement. ''First, they claimed a computer malfunction caused you to overlook your obligations to recuse," Kennedy said. ''They then abandoned that explanation and instead claimed that your financial interest was insufficient to trigger any obligation to recuse."