J.C. No. 06-04

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

OR DISABILITY

ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351

MEMORANDUM OPINION

(Filed: January 26, 2006)

PRESENT: ROTH, Circuit Judge[i]

This is a complaint filed pursuant to 28 U.S.C. § 351 against a United States Circuit Judge [Judge Alito]. [Judge Alito] has been nominated by the President to a different position within the federal government.[ii] According to [Heimbecker], [Judge Alito], as part of the proceedings before a Senate Committee in regard to his confirmation, was asked in a written questionnaire, “Please provide a list of any instance during your tenure on the Third Circuit that there has been a request for you to recuse yourself from a case, motion, or matter, or when you have otherwise considered recusing yourself from a case, motion or matter.”

Judge Alito has admitted failing to include 03-2180 and blamed it on a computer coding error.

J.C. No. 06-04

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

OR DISABILITY

ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351

MEMORANDUM OPINION

(Filed: January 26, 2006)

PRESENT: ROTH, Circuit Judge[i]

This is a complaint filed pursuant to 28 U.S.C. § 351 against a United States Circuit Judge [Judge Alito]. [Judge Alito] has been nominated by the President to a different position within the federal government.[ii] According to [Heimbecker], [Judge Alito], as part of the proceedings before a Senate Committee in regard to his confirmation, was asked in a written questionnaire, “Please provide a list of any instance during your tenure on the Third Circuit that there has been a request for you to recuse yourself from a case, motion, or matter, or when you have otherwise considered recusing yourself from a case, motion or matter.”

Judge Alito has admitted failing to include 03-2180 and blamed it on a computer coding error.

FORWARDED COPY FOLLOWS

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A member’s father is involved in a late breaking controversy involving Samual Alito, who has been found to have omitted legally required data from a questionnaire he provided to the Senate Judiciary committee.

As it turns out, the member’s dad - H. Gerard Heimbecker - had a case before Alito and the 3rd Circuit appellate court in which Alito along with the rest of the 3rd circuit had been asked to recuse themselves. Mr. Heimbecker has since filed a judicial misconduct complaint against Judge Alito.

The request for recusal by Mr. Heimbecker becomes relevant when viewed in light of the question number 23 of the Senate Judiciary Questionnaire which reads in part as follows:

Please provide a list of any instance during your tenure on the Third Circuit that there has been a request for you to recuse yourself from a case, motion, or matter, or when you have otherwise considered recusing yourself from a case, motion, or matter.

Question 23 is then broken down in outline form into 4 explanatory sub-paragraphs that leaves no doubt whatsoever that any request for recusal whether “real, apparent or asserted” is to be disclosed. Not only is the recusal to be disclosed, but also a detailed explanation must be given as to the procedure followed in the final determination and the reason for the decision to recuse or declining to do so.

The fact that Alito omitted the required data is not in dispute by anyone, including Alito himself. The following is from a Washington Post article on the subject: [i]After news of the complaint became public yesterday, Judge Alito wrote to Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, and advised him of the case. Also, a clerk on the 3rd Circuit wrote to say he had mistakenly overlooked the case because of a clerical error.[/i]

An objective view of the facts would indicate that the claim this omission being a “clerical error” to be dubious at best. Alito’s most recent vote on the case was cast less than three (3) weeks before President Bush had nominated him to the Supreme Court. Not only had Alito’s involvement in “555” been very recent, it had been very protracted. In the time leading up to and directly prior to his nomination, he had voted on it at least 4 times and offered written opinions.

In answering question 23 regarding recusal, Alito and his staff somehow mustered enough clerical efficiency to render a listing of 23 such cases dating as far back as 1990. How is it then that the most recent case which should have been the most fresh in everyone’s mind was somehow omitted? Wouldn’t Judge Alito (or anyone else possessing even a small degree of reading comprehension) have picked up on this glaring “clerical error” immediately through a quick proof-reading of the responses that were submitted?