Alito's policy on recusals is questioned

WASHINGTON -- In 1987, Samuel A. Alito Jr., then the US attorney for the district of New Jersey, signed a bank fraud indictment of a New Jersey man named Larry Kopp. Later, when Alito became a federal appeals judge, he put the Kopp case on his ''standing recusal" list, seeking to uphold his promise that he would disqualify himself from any case that he had supervised as US attorney.

But in 1992, Alito was noted as ''present" in the court's final decision in the Kopp case, in which the vacating of Kopp's sentence was upheld.

If Alito did take part, it would appear to be a fourth instance in which the Supreme Court pick was recorded as being in a case he had promised to avoid.

The chief judge of the appeals court, Anthony J. Scirica, said in a telephone interview that the clerk should have kept Alito from considering the case, and that there was no way to know from the record whether he had participated.

Kopp's lawyer, James A. Plaisted, said that he was not aware of Alito's involvement and said that he did not believe Alito's role should be questioned.

''It would be really unfair to take that case to some kind of criticism of Judge Alito," Plaisted said.

The case demonstrates the fine line that Alito's critics might be walking as they prepare for his confirmation hearing next month. Along with the controversy over Alito's statement that there is no constitutional right to abortion, the questions about whether Alito is insensitive to charges of conflict of interest have drawn particular interest from Democrats.

In the most noteworthy case, Alito pledged not to take a case involving Vanguard Investments, in which he owned mutual funds, but nonetheless wrote an opinion in Vanguard's favor and then complained about having been taken off the case.

In addition, Alito was involved in cases regarding the brokerage firm of Smith Barney, with which he did business, and with his sister's law firm, despite promises to the Senate to avoid them.

In the Smith Barney matter, Alito was part of a three-judge panel that overturned a lower court's ruling on a case involving the brokerage firm.

Alito was also listed as ''present" in 1995 when his entire appeals court reviewed a case in which his sister's law firm represented one of the parties.

A White House official said that Alito did not remember the case, and that there is no further evidence of his participation beyond being marked as present.

The conflict-of-interest issue continues to hinder Alito. Yesterday, Senator Edward M. Kennedy, the Massachusetts Democrat, sent a letter to Alito demanding more answers about the Vanguard case.

He said that Alito's varying explanations have left the matter ''even more problematic than when the issue was first raised."

Alito and his aides have variously said that he was involved because a computer glitch did not flag the conflict, that his mutual-fund ownership did not represent a conflict, and that he had recused himself after complaints arose.

The Kopp case represents a different type of potential conflict: Alito had promised the Senate when he was up for confirmation as an appeals judge that he would not take any case that he had dealt with as US attorney. Alito recognized that it would be a direct conflict -- challenged by defendants -- if he served as prosecutor and judge on the same case.

''I would disqualify myself from any case in which I participated or that was under my supervision" as US attorney, Alito wrote to the Senate in 1990, during his confirmation hearing to be a judge on the US Court of Appeals for the Third Circuit.

The Kopp case fit those guidelines: Alito signed Kopp's indictment and oversaw the office that prosecuted Kopp. Thus, the Kopp case appears on Alito's ''standing recusal list," which was submitted to the court and given to the Senate last week.

The court was supposed to ensure that Alito would never receive the dozens of cases on the recusal list that had been prepared.

The system apparently worked -- up to a point. When Kopp appealed his conviction for bank fraud, Alito was not put on the three-judge appeals court panel because the Kopp case was on his recusal list, according to Scirica.

The panel found that Kopp had been sentenced improperly and vacated his sentence.

The US attorney's office asked the full Court of Appeals for the Third Circuit, sitting in an ''en banc" (on bench) proceeding, to allow a rehearing.

The full panel denied the government's request for a rehearing.

Alito is noted in court papers as present for the en banc decision. Scirica said that should not have happened, that the clerk should have blocked the case from being sent to Alito for consideration.

''Mistakes are made when you get a petition for rehearing," Scirica said. ''On more than one occasion when I have been recused in a case, my name was on petition for rehearing."

In an e-mailed response to the Globe, Dana Perino, a White House spokeswoman, said: ''There is no way to tell from the records of the court whether he actually participated in the petition for the rehearing en banc.

''The Third Circuit has told us that simply because his name appears on the order, that doesn't mean he participated," Perino said. She referred further questions to Scirica.

Scirica acknowledged that whenever a judge is marked present, as Alito was in the Kopp case, he or she normally participates in the case. A judge's vote is registered only if he decides in favor of a rehearing, Scirica said.

He added that no one had asked for a rehearing in this case.

Thus, the only record of who may have participated in the Kopp case is the listing of judges ''present," Scirica said.

Kopp, in a telephone interview, said he had been stunned that this obscure case had been noted in the papers delivered by Alito to the Senate for the review of Alito's nomination by the administration to be a Supreme Court justice.

Stressing that his sentence had been vacated, Kopp said he had no idea that Alito might have had any involvement in his case.

Kopp said that the case was ''an unpleasant memory," and that he could only speculate about whether Alito might have forgotten to recuse himself.

''No one will ever know if he just forgot because it was one of a zillion cases, or whether he conveniently forgot," Kopp said.