On his Countdown show Thursday night, MSNBC's Keith Olbermann hyped "new questions now concerning the judicial ethics of Supreme Court nominee Samuel Alito" because of alleged conflicts of interest, including the judge's participation in court cases involving Vanguard and Smith Barney, companies through which Alito owned mutual funds and stocks. Olbermann expressed his view that "it would seem to me these are throat cutters" and that "he shouldn't be on a federal court after this anymore."
Although Olbermann did note that in the case involving Smith Barney, Alito had sided against the company, he did not present a balanced look at the situation as he merely interviewed George Washington University law professor Jonathan Turley, whom Olbermann credited as "the first to raise questions about Judge Alito's personal conflict...even before he was officially nominated."
Turley criticized Alito because "a judge is supposed to recuse himself when there's an appearance of a conflict," while he also conceded that "it's not that Judge Alito doesn't have an argument here. It's a technical one." A complete transcript of Olbermann's interview with Turley from the November 10 Countdown show follows:
Keith Olbermann, in his opening teaser: "Which of these stories will you be talking about tomorrow? Trouble with the Supreme Court nominee -- again. Judge Alito ruled in favor of the Vanguard mutual fund company. Unfortunately, Judge Alito had $400,000 in Vanguard mutual fund funds at the time, after he had written to the Senate saying he would disqualify himself from any case involving Vanguard mutual funds. Oops!"
After covering other subjects in the teaser, Olbermann opened the show: "Good evening. It's either yet another case of the borking of a judicial nominee, derail a nomination, in this case for the Supreme Court, one drip at a time. Or instead, it's a legitimate troubling stop along the paper trail of a jurist's life work. Our fifth story on the Countdown, either way, new questions now concerning the judicial ethics of Supreme Court nominee Samuel Alito. As Judge Alito made the rounds on Capitol Hill today, new questions concerning when a judge has to fulfill a promise to recuse himself to avoid the appearance of a conflict of interest, and when he does not. And those questions put the Republican leadership on edge. Senate Judiciary Chairman Arlen Specter asking the judge in a letter, quote, 'to make a full public response on the propriety,' unquote, of his having failed to remove himself from two different cases, one involving the Vanguard mutual funds company he found in the company's favor. The other, Smith Barney. He seems to have found against them. Vanguard and Smith Barney, two firms with which Alito had invested. By doing so, Judge Alito's seemingly breaking a promise to the Senate Judiciary Committee made while filling out its questionnaire before it confirmed him as a circuit court judge in 1990. The current judiciary chair advising today that it would be best for the nominee to get ahead of the story. 'I think it is not advisable to wait until that time which would allow columnists, radio/TV talk shows and your adversaries to speculate on this issue to the determent of your nomination.' Well, that boat has sailed. Those in the know already preparing to skip ahead to the recusal section. Question number 23, when Judge Alito returns this questionnaire submitted to him today by this judiciary committee."
Olbermann: "And if the Vanguard/Smith Barney cases were not troubling enough, the third item on the recusal watch: Judge Alito, a member of the appeals court which reviewed a 1995 case in which his sister's law firm represented one of the parties. The judge has now replied to Senator Specter's letter with one of his own. 'I respectfully submit that it was not insonsistent with my questionnaire response for me to participate in two isolated cases seven and 13 years later, respectively.' He said the 1990 questionnaire only covered his plans for 'initial service,' and he had been unduly restrictive towards himself. The first to raise questions about Judge Alito's personal conflict in the Vanguard case even before he was officially nominated was George Washington University law professor and constitutional law expert Jonathan Turley. He is good enough to join us right now. Jonathan, good evening."
Jonathan Turley, George Washington Unviersity: "Good evening."
Olbermann: "I'm a layman, but it would seem to me these are throat cutters. I mean, to the degree that the case could be made, he shouldn't be on a federal court after this anymore. Is it egregious? Or is this a layman's exaggeration?"
Turley: "I don't think it's an exaggeration. I think it's serious no matter how you look at it. The point is that it's not that Judge Alito doesn't have an argument here. It's a technical one. As we used to say, it's a good Philadelphia lawyering in that he can argue that he didn't technically own an interest in Vanguard. There's an argument to be made on either side, that he didn't meet that very narrow definition. The problem is that being involved in the case with Vanguard was serious enough that he expressly promised not to do it in his confirmation hearings. And it was serious enough that when it was raised, he recused himself from the case. So this doesn't look good. It doesn't show good judgment. And I'm a little bit curious as to when he says that it proved too restrictive for him to continue to comply. These are the only two Vanguard cases I know that came in front of him. It doesn't seem particularly restrictive. The odds that he would have a third such case are rather remote."
Olbermann: "You can look at those who oppose Chief Justice Roberts or Harriet Miers or anybody else and say, 'Well, look, those were purely political issues and motives.' Is this not something simpler and more resonating with the average person judging this at home, that they seem to be about money and ethics, rather than about politics, that he was, one way or the other, ruling about financial issues, or financial gain, at least, for two companies in which he had some kind of financial stake."
Turley: "Well, I guess what I'm most disturbed with is the spin we had today. I mean, frankly, this is something that he might be able to get around with by just saying, 'You know what? I made a mistake. And I probably should have recused myself.' A judge is supposed to recuse himself when there's an appearance of a conflict. You're supposed to err on the side of recusal, particularly on the appellate court where it's not that big of a deal for an appellate judge to stand aside in one or two cases in 15 or 17 years. The other thing is that we have to keep in mind that it's not that he had a lot of money at stake. This company has hundreds of billions of dollars, so he probably had less than a bucket stake in this, if that at all. But there is still that appearance. I think people understand that you shouldn't rule in a case with a company that you have this type of direct association with."
Olbermann: "The time lapse part, in today's response to Senator Specter, that the 1990 questionnaire only applied to his tenure on the circuit court of appeals. I guess from what I'm reading in it, that it only applied to the start of that tenure. Is that legally true? Is that accurate as well?"
Turley: "Well, that's a little bit odd since his interest in Vanguard continued. I'm not quite sure why they're introducing this sort of temporal element to ethics. What's clear is that he did break his promise from the confirmation hearings. How serious that is? I'm not too sure. I think it's ironic, you know, I've been writing for years that these senators do the same thing. These guys routinely legislate in areas where they have direct financial interest, so it's going to be a rather interesting hearing with these senators doing this Claude Rains and being shocked that anyone would ever do anything in an area where they have a financial interest. But putting that aside, we expect more from judges than we do our politicians."
Olbermann: "And that is, by the way, the video we're showing right now is a coincidence that we're showing the shot of Senator Frist with the judge, but sum this up for me. Truly it is. The thumbs up or the thumbs down on this? Politics aside on this on an ethical point, whether it's a technicality or the explanation is a technicality, do you think the judge's nomination is in jeopardy?"
Turley: "I don't think his nomination's in jeopardy. But I got to tell you, this is a hit below the water line, and he can take a few more. But we're still early in this season."