Justice Alito rejects partisan demand for recusal from Sen. Durbin, other Democrats

September 10, 2023
Ben Marquis

Senate Democrats, in their incessant efforts to impose their will on the co-equal Supreme Court and undermine its institutional legitimacy, have launched concerted personal attacks against conservative jurists like Justice Samuel Alito with accusations of ethical violations and demands for recusal from certain cases.

Justice Alito just responded to a demand from Senate Judiciary Committee Chair Dick Durbin (D-IL) that he recuse himself from specific cases by flatly rejecting the senator's arguments as legally "unsound" and invalid, according to Breitbart.

Durbin demands Alito's recusal

On Aug. 3, Sen. Durbin and other Democrats sent a letter to Chief Justice John Roberts to complain about recent criticism Justice Alito had expressed in an interview toward pending Democratic legislation to regulate the Supreme Court as well as an attorney-journalist who participated in the interview.

Given that Alito had seemingly prejudged the legislation's constitutionality and that the attorney-journalist, David Rivkin, is a party to a case pending before the Supreme Court, Durbin accused Alito of violating ethical standards and called upon Roberts to "ensure that Justice Alito will recuse himself in any future cases concerning legislation that regulates the Court, as well as Moore v. United States."

Moore v. United States is a case that questions "Whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states." Per SCOTUSblog, it deals with the constitutionality of a provision of the 2017 tax cuts legislation that imposed a "mandatory repatriation tax" on U.S. taxpayers who own shares in foreign corporations even if those companies never pay out any returns on the taxpayer's investment.

Alito says there's "no sound reason for my recusal"

On Friday, attached to an Order List, came a special statement from Justice Alito in response to Sen. Durbin's letter sent more than a month earlier that called for his recusal from any cases centered on congressional regulation of the court as well as the Moore v. United States case.

"Recusal is a personal decision for each Justice, and when there is no sound reason for a Justice to recuse, the Justice has a duty to sit," Alito wrote and then emphasized, "There is no valid reason for my recusal in this case."

With regard to Durbin's demand that he recuse due to Rivkin's involvement in the prior Wall Street Journal interview due to the attorney's involvement in the Moore case, the justice said, "This argument is unsound," and explained that Rivkin had been acting in his known capacity as a journalist and that the particular case, of which his involvement was disclosed in the article, never came up for discussion "either directly or indirectly" in the conversation.

Alito further noted numerous examples of other justices sitting for interviews with attorneys who had cases before the Supreme Court in which there were no recusals or demands for such, and wrote, "Senator Durbin’s request for my recusal is presumably based on the theory that my vote in Moore will be affected in some way by the content of the articles that resulted from the interviews, but that theory fundamentally misunderstands the circumstances under which Supreme Court Justices must work."

He pointed out that justices often sit for cases involving attorneys who have "spoken favorably or unfavorably" about them, as well as members of Congress, former law clerks and colleagues, or other individuals with whom they are acquainted, and said, "If we recused in such cases, we would regularly have less than a full bench, and the Court’s work would be substantially disrupted and distorted."

"In all the instances mentioned above, we are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts. And that is what we do," Alito concluded. "For these reasons, there is no sound reason for my recusal in this case, and in accordance with the duty to sit, I decline to recuse."

Durbin fires back with more accusations

Unsurprisingly, Sen. Durbin was quite displeased with Justice Alito's response and lashed out in a statement that referenced prior baseless ethics violations accusations and insisted upon the need for congressional regulatory oversight of the Supreme Court by way of Democratic legislation known as the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which was passed by Durbin's committee but awaits action by the full Senate.

"Justice Alito, of the originalist school of thinking that empty seats on an airplane don’t count as gifts, surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal," Durbin said. "Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?"

"The Court is in a crisis of its own making, and Justice Alito and the rest of the Court should be doing everything in their power to regain public trust, not the opposite," the Illinois senator added. "This episode is further proof that Chief Justice Robert’s failure to act remains untenable, and Congress needs to pass the SCERT Act to create an enforceable code of conduct. Supreme Court Justices should be held to the highest ethical standards, not the lowest."

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