Monday, November 14, 2005

Promises

We don't do weekends here at Lucky Duckies, so we missed out on the opportunity to pile on to the Journal's Saturday morning endorsement of "aggressive interrogation" (don't call it torture!). That had it all, with tendentious mischaracterizations of the relevant international treaties (treaty commitments not to torture and to treat prisoners of war humanely are separate commitments; proving that someone is an "unlawful combatant" doesn't entitle you to employ 16th-century water tortures on him), breathtakingly selective accounts of the available evidence (it's all about the hoods; pay no attention to the dead detainees!), and through it all the sort of belligerent, yet utterly unwarranted sanctimony that keeps us coming back to the Journal editorial page for material every day.

But this has already been rehashed repeatedly by now; for a running commentary and a fairly exhaustive selection of links to the relevant critiques see andrewsullivan.com. With the story 48 hours old and already growing stale, it's time to move on. And we confess anyway to a certain preference for the subtler strains of Journal mendacity. Knockabout nonsense like Saturday's offering is fine for an occasional treat, but true connoisseurs understand the thrill of hunting for that crucial nugget of dishonesty hidden at the heart of even the most seemingly "reasonable" Journal piece.

Speaking of which, it's time for today's installment. Much of today's page is taken up eulogizing Peter Drucker, and we obviously have no quarrel with that. Rest in peace, Mr. Drucker. But leading the page is the Journal's attempt to head off at the pass what it clearly sees as the most potentially damaging threat to Samuel Alito's confirmation to the Supreme Court. Headlined "Alito's Sock Drawer," the editorial is an extended whine about the questions that Democrats have raised regarding Alito's participation in Monga v. Ottenberg, a case involving the Vanguard mutual funds.

The editors threaten their readers with an extensive recitation of the "gory details" of the case, but it only winds up taking them about three sentences to cover it. Judge Alito promised during his confirmation hearings to the Appeals Court not to rule on cases involving Vanguard, since he was an owner of Vanguard mutual funds. He did so anyway and, when challenged, wrote to the chief administrative judge of the court that "I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares."

The facts here are all fairly straightforward and unquestioned. Although the editors make a brief feint at drawing a distinction between Alito's "initial service" on the court (however that might be defined) and his ongoing tenure, they never make any attempt to explain what the distinction might be or how it could be relevant. So the argument proceeds instead to an outlandish misrepresentation of the issue. The Journal insists that Alito was right in his ruling on the merits of the case itself, and claims "there was no legal or ethical reason for him to recuse himself from cases involving Vanguard . . . If such a standard did hold, we'd add, then only judges who kept their savings in mattresses or sock drawers would be deemed worthy of confirmation to the High Court."

Well, of course no one has questioned Alito's right to invest in the stock market while serving as a judge, only his right to rule on issues where he has a conflict of interest. And most of his critics are fairly open to the idea that there was no real conflict in this case. It isn't obvious to the staff of Lucky Duckies, anyway, why ownership of a mutual fund would create a conflict on a case involving the firm that sold it. But this is all neither here nor there. The issue, which the Journal chooses simply to ignore, is whether Alito should have felt bound by the promise he made during his confirmation hearings not to rule on such cases. He says he changed his mind in the interim, and that's that. But Senators have an obligation to inquire more closely.

After the brief Miers interregnum, the editors have presumably returned to their previous policy of disputing the Senate's right to ask meaningful questions of any Bush judicial nominee. But Senators who take their constitutional responsibilities in this matter more seriously might justly wonder what the point is in asking Judge Alito any questions at all if he doesn't regard promises he makes while seeking confirmation to be binding once he wins it.

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