No, but the Bush Administration ought to take the heat for falsely implying it was all just a computer error. The real concern one should have about Alito is an excessive deference to the other branches of government and if anything this incident helps (very slightly) allay those fears.

For those who don’t know what I’m talking about the liberal blogs have been going nuts over the revelation that Alito did not recuse himself from a case involving Vanguard corp. despite submitting a sworn statement (page 43) to the Senate that he would do just that during his confirmation hearings. To my knowledge no credible source has yet claimed hearing the case in and of itself was an ethical violation. The complaint is just that he violated his sworn ‘promise’.

The primary problem with this complaint is that there is no such thing as a sworn promise. Yes Alito submitted a sworn statement to the Senate saying he would recuse himself in such cases but what he is swearing to is the truth of his statements not some future commitments (go read the end of the questionnaire if you don’t belief me). Given that 15 years elapsed between his statement and the case in question there is every reason to believe he really did intend to step aside in such cases when he submitted the statement. Not only does his statement not legally obligate him not to change his mind it would be wrong of him to let an ancient ‘promise’ force him into making a decision on the bench he thought was unjust. Of course recusing himself is hardly a big deal but the principle is the same.

If you are still unconvinced that this is just a liberal witch-hunt let’s consider the question on page 46 of the same questionnaire. This question asks how Alito feels about judicial activism. Suppose (falsely) that Alito had said he would decide constitutional issues in accordance with philosophy of strict constructionism. If on the bench Alito realized that this philosophy was flawed and a much broader interpretation of the constitution was warranted should he still abide by his ‘promise’? Unless you feel it would be wrong of Alito to vote to uphold Roe v. Wade after making such a statement it just isn’t consistent to call him out for changing his mind on this issue. You just can’t have it both ways, either these ‘promises’ are binding or judges have the right to change their mind.

Ultimately I find the idea that judges are morally, even if not legally, obligated to respect such promises very troubling. Such an attitude would gravely imperil the independence of the judiciary. If judges faced a strong societal censure for revising opinions they shared with the Senate they would not have the chance to grow and evolve as justices. Yet it is equally important that the Senate have enough information to evaluate the nominee and be able to ask what philosophy the nominee intends to apply.

This entire discussion makes me embarrassed to be a liberal. I mean jesus christ people is this really the reason you are opposed to Alito? If you had found out your favorite supreme court nominee had done the same thing would you really change your mind about them? I very much doubt it so lets keep the discussion focused on the real issues.