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Samuel Alito Isn't Going To Recuse Himself No Matter How Bad That Makes Him Look

A lifetime appointment means never having to say you're sorry.

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Samuel Alito no longer cares if he’s seen by the American public as an impartial arbiter of the nation’s laws — if he ever did. He has his lifetime appointment, and it’s unlikely no matter how outrageous the behavior there’ll be 2/3 of senators willing to vote for removal even if the House ever voted for impeachment.

I know all this because of a WILD order authored by Alito. See, he’s been caught up in our summer of SCOTUS ethics scandals, most recently he’s come under fire for self-serving interviews with the Wall Street Journal pronouncing he’s, well, above the law, saying, “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” Of course, that’s a wrong take, but there’s another problem besides his constitutional construction.

One of the interviewers was BakerHostetler attorney David B. Rivkin Jr. (the other was Wall Street Journal editorial features editor James Taranto). Rivkin is an attorney in a tax case, Moore v. United States, currently before the Court. (Rivkin also represents the Federalist Society’s Leonard Leo… who was asked by the Senate Judiciary Committee for details regarding a luxury fishing trip he took with Alito.) Because of this overlap, Senator Richard Durbin, the Chair of the Senate Judiciary Committee, sent a letter to the Court asking Alito to recuse himself.

The order was Alito’s response and it’s quite the read. He ranted that there’s “no valid reason” for recusal and said the argument against him is “unsound,” and Durbin “fundamentally misunderstands the circumstances under which Supreme Court Justices must work.” That’s quite the attack from someone supposed to avoid even the appearance of impropriety. As Fix the Court’s Gabe Roth notes:

“Justice Alito’s decision to dress up some misguided views of his ethical obligations as a formal Court opinion doesn’t make the missive any more correct or any less imperious.

“Alito apparently believes that as a justice, he’s not bound by federal conflict-of-interest laws. But why then does he recuse each year from more than a dozen petitions involving companies whose shares he owns? Disqualification from a stock case under the law is no different from disqualification in a case where a justice’s ‘impartiality might reasonably be questioned.’ And reasonable people, like Chairman Durbin, are questioning Alito’s impartiality.”

Alito’s screed also disingenuously lumps Rivkin’s role in the interviews in with examples of the press generally. But, of course, Rivkin’s day job is BIGLAW PARTNER with cases before the Court which is distinct from every other example Alito makes. As Roth notes:

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“Alito is of course free to give multiple interviews to the Wall Street Journal. But — and this should be obvious to everyone — David Rivkin’s participation in them was not necessary for them to take place. It’s not like James Taranto marks emails coming from a supremecourt.gov address as spam. Under a basic understanding of attorney and judicial ethics, what should have happened is that as the first interview was being set up, Rivkin, knowing his Moore petition was under consideration, should have bowed out of the process and let Alito and Taranto proceed. That Rivkin appeared as a co-byline in both the first interview, when his petition was pending, and in the second interview, given just after the petition was granted, raises ethical questions that seem obvious to everyone but Alito and require disqualification.

“Finally, Alito’s examples of justices not recusing in media cases after said outlets had interviewed them are inapt. It’s not like Nina Totenberg’s name was on the cover of a Supreme Court brief at the time she interviewed some justices. What an embarrassment.”

“Embarrassment” is definitely one take on Alito’s non-recusal, another might be “clownshow” or “famously thin-skinned” or “corrupt” — dealer’s choice which descriptor you use but the point remains very much the same.

This is just another reason why the Court needs an enforceable ethics code. Because right now, there’s no recourse except asking politely, hey there Sam, how’s about you be ethical? Which is what Durbin did. And when Alito responds “I prefer not to” that’s it, there’s nothing else to be done.

Is this Alito’s heel turn? I don’t think so — that likely happened years ago, but this may be the moment he announced it to the world.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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