Alito reviewed '95 case involving sister's firm

WASHINGTON -- Judge Samuel A. Alito Jr., who said in 1990 that he would disqualify himself from cases involving his sister's law firm, was a member of an appeals court that reviewed a 1995 case in which his sister's firm represented one of the parties, according to court records.

It is at least the third instance in which there is no indication the Supreme Court nominee recused himself from the kind of case he had promised a Senate committee he would avoid as a federal judge.

The news of the case, which had not been reported previously, comes one day after two Democratic senators said they wanted more answers to conflict-of-interests questions about Alito's involvement in cases regarding Vanguard and Smith Barney -- investment firms Alito had accounts with.

Rosemary Alito, a lawyer who is Samuel Alito's sister, confirmed in a telephone interview yesterday that she was at the law firm of McCarter & English of Newark when the decision was made in the case.

But she said she was ''absolutely not" personally involved in the case, which involved repayment of a bank loan. She declined to comment further.

The US Court of Appeals for the Third Circuit, acting as a full court, denied a borrower's petition for a rehearing in the case. The bank that held the loan, MidAtlantic National Bank, was represented by Rosemary Alito's firm.

The decision by the full court in the case lists Samuel Alito and 14 other judges as being ''present" and notes that one judge -- not Alito -- said the case should be reheard. It lists McCarter & English as the counsel for the bank. The decision -- which supported the bank's position -- provides no indication that Alito or any other judges recused themselves.

Dana Perino, a White House spokeswoman, said last night that Alito ''does not have recollection of this case."

Perino said a majority of the court denied a rehearing without providing a vote tally. ''The only ones recorded are those that vote yes," for a rehearing, she said.

Perino said the law firm of Rosemary Alito did not file a brief in the full court appeal, suggesting that Samuel Alito may not have been aware of the connection. She said a computer program now in use to prevent conflicts of interest had not been established for such cases.

Jack Beermann, a Boston University law professor, said it is impossible to know whether Samuel Alito was aware of the involvement of his sister's law firm if he said he does not recall the case and a full vote was not recorded. But Beermann said ''it could be an honest mistake" if Alito participated but did not read the original briefs from his sister's firm when it was representing the bank.

In a written response to questions from the US Senate during his 1990 confirmation hearings to be an appeals judge, Samuel Alito promised: ''I would disqualify myself from any case involving my sister's law firm, Carpenter, Bennett & Morrissey of Newark, New Jersey." His sister left that firm in 1994, and she said yesterday that she joined McCarter & English in March 1994 -- about a year before the full court denied a rehearing in the bank-loan case.

Samuel Alito's promise to disqualify himself from hearing cases in which he faced a potential conflict of interest has become a focal point for Democratic critics as they prepare for his Supreme Court confirmation hearings in January.

In his questionnaire, provided to the Senate during his confirmation hearings as an appeals court judge, Samuel Alito cited four types of cases in which he would disqualify himself to avoid a potential conflict of interest: those involving Vanguard, in which he owned mutual fund shares; Smith Barney, his brokerage firm; First Federal Savings & Loan of Rochester, N.Y., which held his home mortgage; and his sister's law firm.

Alito ruled in a 2002 case in Vanguard's favor at a time when he owned between $390,000 and $975,000 in mutual fund shares from Vanguard.

He withdrew from the case after a complaint was filed by Shantee Maharaj, a Massachusetts woman who wanted Vanguard to give her the assets of her late husband's mutual funds.

Nonetheless, he wrote a letter to the chief circuit judge in 2003 complaining about the effort to remove him from the case. ''I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares," he wrote.

After Alito's ruling was vacated, a different three-judge panel also ruled in Vanguard's favor.

The Vanguard case has prompted top Democrats on the Senate Judiciary Committee to demand more answers from Samuel Alito in the coming days. Senator Edward M. Kennedy sent the nominee a two-page letter seeking more information about the case before they meet Tuesday.

Kennedy and several other Democrats also sent a letter seeking details about the case to Judge Anthony J. Scirica, the chief judge of the Third Circuit.

The Democrats also asked for any communications between the White House and Samuel Alito about how to respond to questions about the Vanguard case.

The White House originally said Samuel Alito had been assigned the case because of a computer error in a system that is supposed to prevent judges from receiving cases with a potential conflict of interest. But the White House later argued that Samuel Alito didn't need to disqualify himself because his mutual funds did not amount to a financial interest in the case.

While the White House and other Samuel Alito allies have dismissed questions about the case as an unfair political attack, Democrats have said questions about potential conflicts of interest should be taken seriously, especially since Alito appears to have violated a promise to the Senate.

''He made it very clear he would not hear any cases with those people," said Senator Patrick J. Leahy, a Vermont Democrat. The issue ''is something that obviously is going to be an issue at the hearing," he added.

Samuel Alito was involved in a 1996 case involving Smith Barney despite his vow to disqualify from such cases, Newsday has reported.

Michael Kranish can be reached at kranish@globe.com