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Commentary: Don't Give the Predatory Left a Single Inch on SCOTUS 'Reforms'

Guy Benson
Guy Benson  |  June 22, 2023 1:05 PM

Left-wing ProPublica has continued the remarkably weak yet brazen assault on the US Supreme Court, targeting (exclusively conservative) justices with various "ethics"-related "scandals."  We've written about this campaign -- apparently orchestrated by dark money-funded activists, peddled to various media outlets, and eagerly seized upon by elected Democrats -- on several occasions.  It's not subtle.  Its purpose is not good governance or genuine accountability.  Its purpose is to attack an institution that is, frustratingly for them, not controlled by their ideological tribe, and to erect feeble pretexts for "reforms."  In turn, these proposed "reforms" are not about tweaking ethical guidelines for the justices.  They're about chipping away at the integrity and legitimacy of the Court and to pave the way for additional and more radical reforms by normalizing such interventions.  Their actions are what's really illegitimate here, and Republicans must not offer one single concession to these schemers.

The latest example involves Justice Samuel Alito, pointing to supposedly problematic behavior involving a trip to Alaska years ago.  ProPublica reached out to Alito for comment, and Alito went straight to the Wall Street Journal to preemptively address the claims leveled against him.  You can read his full explanation here, in which he argues that under the rules in place at the time, he was under no obligation to report the trip, and had absolutely no reason to recuse himself when a case tangentially connected to the owner of the plane on which he'd traveled later came before the Court (a connection of which Alito says he was totally unaware).  A snippet:

ProPublica has leveled two charges against me: first, that I should have recused in matters in which an entity connected with Paul Singer was a party and, second, that I was obligated to list certain items as gifts on my 2008 Financial Disclose Report. Neither charge is valid...I had no obligation to recuse in any of the cases that ProPublica cites. First, even if I had been aware of Mr. Singer’s connection to the entities involved in those cases, recusal would not have been required or appropriate...My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups. On no occasion have we discussed the activities of his businesses, and we have never talked about any case or issue before the Court. On two occasions, he introduced me before I gave a speech—as have dozens of other people. And as I will discuss, he allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska...when I reviewed the cases in question to determine whether I was required to recuse, I was not aware and had no good reason to be aware that Mr. Singer had an interest in any party.

...Until a few months ago, the instructions for completing a Financial Disclosure Report told judges that “[p]ersonal hospitality need not be reported,” and “hospitality” was defined to include “hospitality extended for a non-business purpose by one, not a corporation or organization, . . . on property or facilities owned by [a] person . . .” Section 109(14)...I did not include on my Financial Disclosure Report for 2008 either the accommodations provided by the owner of the King Salmon Lodge, who, to my knowledge, has never been involved in any matter before the Court, or the seat on the flight to Alaska.  In brief, the relevant facts relating to the fishing trip 15 years ago are as follows. I stayed for three nights in a modest one-room unit at the King Salmon Lodge, which was a comfortable but rustic facility. As I recall, the meals were homestyle fare. I cannot recall whether the group at the lodge, about 20 people, was served wine, but if there was wine it was certainly not wine that costs $1,000. Since my visit 15 years ago, the lodge has been sold and, I believe, renovated, but an examination of the photos and information on the lodge’s website shows that ProPublica’s portrayal is misleading. 

On accepting the flight, Alito writes, "it was my understanding that this would not impose any extra cost on Mr. Singer. Had I taken commercial flights, that would have imposed a substantial cost and inconvenience on the deputy U.S. Marshals who would have been required for security reasons to assist me."  The organized, cynical, power-hungry Left has reacted to all of this predictably, alleging that this is yet more evidence of corruption that cries out for urgent and decisive "reform" action.  This response is the entire point of these "investigations."  Senate Judiciary Committee Chairman Dick Durbin is pledging to mark up legislation as soon as possible. Some lefties are even whining about the Journal published Alito's 'prebuttal,' arguing that it's poor journalistic form to "scoop" a competitor in this fashion.  The heart bleeds. The Journal's editors fired right back:


They offer additional pertinent details, exposing ProPublica's tendentiousness, sloppiness, and deceit:

The ProPublica story is a typically slanted piece alleging that Justice Alito broke ethics and recusal rules after the trip with businessmen Robin Arkley and Paul Singer. He flew on Mr. Singer’s private jet for part of the trip. The story also recounts a fishing trip that the late Justice Antonin Scalia took with Mr. Arkley in 2005. But Justice Alito is still on the Court so he is the big fish that ProPublica is attempting to catch and fillet. Regarding ethics, the story flatly asserts that Justice Alito violated disclosure rules, but he did not. At the time of the trip, the Justices were authoritatively advised that such “personal hospitality” wasn’t reportable. Ray Randolph, a federal appellate judge who was on both trips, says he asked the judiciary’s disclosure office whether to report the trip on his 2005 form. Backed by his notes taken at the time, Judge Randolph said he was told he did not have to disclose...As it happens, the fishing trip isn’t even a ProPublica scoop. Justice Alito was so intent on concealing the trip that he told a large audience of lawyers and journalists about it at a Federalist Society dinner in 2009. 

The one case in which Singer had an interest -- again, Alito says he had no idea -- was decided by a 7-1 vote.  The Journal editorial board concludes that the Left's misplaced and inconsistent recusal demands are tantamount to "cripple the Court’s new majority."  They ask, "should Justice Elena Kagan have recused herself from the pending Harvard admissions case because she is a former Harvard law dean? Or Justice Ketanji Brown Jackson from cases about executive power because she must be grateful that President Biden appointed her? They shouldn’t recuse in our view, but those 'appearances' of a conflict are more substantial than recusing over a plane ride from someone Justice Alito had no obvious reason to believe was associated with a case."  I referenced another counterpoint in this tweet:

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You may recall that progressive Justice Sonia Sotomayor declined to recuse herself from copyright cases involving her book publisher, which had paid her millions of dollars.  There was no "ethics" outcry from the Left at the time because they don't actually care about any of this.  They care about damaging individuals and an institution that's currently an obstacle to their agenda.  That's it.  Cede no ground.  Do take note of this little nugget, as well as a fun development in the left-wing dark money space:

An advocacy nonprofit group behind a campaign demanding Supreme Court "transparency" reforms on financial disclosures is in panic mode over accidentally leaking its own funders to the Washington Examiner. Fix the Court, a charity that spun off in 2021 after being a project of the New Venture Fund, a nonprofit group managed by the liberal dark money behemoth and for-profit company Arabella Advisors, is part of a seemingly coordinated campaign calling for Supreme Court justices to disclose more about their finances. Now, the organization is in disarray after unwittingly providing the Washington Examiner with unredacted copies of its own donors in 2021 and 2022.

Oops.  If you click through and read the story, it's even juicier. I'll leave you with these: