What is the meaning of is, anyway?
When Samuel Alito was up for confirmation as a federal appellate judge in 1990, he filled out a Senate questionnaire in which he vowed that, if confirmed, he would recuse himself from any cases involving two investment firms with which he had accounts as well as any cases involving the law firm for which his sister worked.
Confronted now with evidence that he broke that promise -- Alito has heard cases involving Vanguard Group, Smith Barney and his sister's law firm -- George W. Bush's nominee for the U.S. Supreme Court says he didn't really mean what he said. As the Washington Post reports, Alito now says -- at least with respect to the investment firm cases -- that the promise he made in the course of winning confirmation in 1990 either (1) was meant only to apply to his "initial" service on the court, or (2) turned out to be "unduly restrictive," so he bailed on it.
"To the best of my knowledge," Alito wrote yesterday in response to a query from Senate Judiciary Committee Chairman Arlen Specter, "I have not ruled on a case for which I had a legal or ethical obligation to recuse myself during my 15 years on the federal bench."
That may well be right: It's possible that neither the law nor ethical rules would prohibit a judge from hearing cases involving firms that handle his investments. But that's not the issue. The issue is that Alito promised, in 1990, that he wouldn't hear such cases. And then, when he decided that enough time had passed that he should be free to break the promise or interpret it away, he heard the cases anyway.
We'll leave it to others to say whether that should disqualify him for a job on the Supreme Court now. But we will say this: When Alito appears at his confirmation hearings in January and says that he believes in the right to privacy and that he respects precedent and that he has no agenda, the senators who hear those words ought to remember what became of the last promise they got out of him.