Senate Judiciary Committee Chairman Dick Durbin (D-IL) has been repeatedly striking out when it comes to his demands of the U.S. Supreme Court and its conservative members especially. As an editorial from The Wall Street Journal lays out, last month Durbin and nine other Senate Democrats sent a letter to Chief Justice John Roberts demanding that Justice Samuel Alito recuse himself due to an interview he gave to David Rivkin, a lawyer for petitioners in the Moore v. U.S case which the Court is hearing this term. It was Alito who responded, with an unequivocal no.
I guess Durbin broke only two of these rules:
— Mike Lee (@BasedMikeLee) September 8, 2023
1. Never get involved in a land war in Asia.
2. Never argue the law with Justice Alito unless you’ve really done your homework.
3. Never slander a good man who has done nothing wrong unless you’re ready to lose credibility. https://t.co/lNsX0mKc3b
"There is no valid reason for my recusal," Alito pointed out, especially since they did not discuss the case which Rivkin is involved in. "When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate. The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly," the justice continued.
Alito's denial succinctly laid out that the recusal is unnecessary, pointing to not only how Durbin's "theory fundamentally misunderstands the circumstances under which Supreme Court Justices must work," but pointed to how justices frequently have come into contact with attorneys who they have come into contact with before, as former law clerks, former colleagues, or acquaintances. The justices also often consider briefs from members of Congress who have voted for or against their confirmation, or have been vocally supportive or opposed to that confirmation.
As his refusal to recuse read in part, shared by President of Judicial Network Carrie Severino:
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. We have no control over the attorneys whom parties select to represent them, and as a result, we are often presented with cases in which one of the attorneys has spoken favorably or unfavorably about our work or character. Similarly, we regularly receive briefs filed by or on behalf of Members of Congress who have either supported or opposed our confirmations, or who have made either favorable or unfavorable comments about us or our work. We participate in cases in which one or more of the attorneys is a former law clerk, a former colleague, or an individual with whom we have long been acquainted. 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.
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.
The hypocrisy and animosity towards conservative members is further on display in that as Alito also points out, with examples, "[o]ver the years, many Justices have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox News, National Review, and ABC. Similarly, many of my colleagues have been interviewed by attorneys who have also practiced in this Court, and some have co-authored books with such attorneys. Those interviews did not result in or require recusal."
Not only did the WSJ refer to the demand from Durbin and other Senate Democrats as "groundless," the editors even went for a bit of snark:
A monastic vow of seclusion is not a requirement to sit on the Supreme Court. What if a Justice is out at some social event and spots a high-profile appellate lawyer or a litigator in the Solicitor General’s office? Is Mr. Durbin’s idea that the Justice is required by judicial ethics to duck behind a pillar or a potted plant? Don’t let the paparazzi catch you two in the same camera lens, Mr. Justice, or else the recusal demands will start to come in.
In all seriousness, though, recusals are not something to be decided lightly. Senate Democrats know this, though they went after Alito regardless:
At the Supreme Court a recusal can change the outcome of a case, because there aren’t any backup Justices warming up in the dugout. For that reason, the Justices have a heightened “duty to sit,” even when an unwarranted recusal might look like a tempting escape hatch from public criticism.
Mr. Durbin knows this because all nine Justices signed onto an attachment to an April 25 letter from the Chief Justice to the Senator that explained this duty in some detail. “Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy,” said the Statement on Ethics Principles and Practices.
The demand for recusal in most cases is nothing less than an attempt to influence the judicial outcome by disqualifying a Justice. In Moore the target is Justice Alito, but the liberal Justices know that they will also be targets if recusal becomes common in the face of political attacks. Justice Alito is again standing up for the Court, and he deserves the thanks of all who support an independent judiciary.
Despite Alito's sound reasoning, backed up by those such as the editors of the WSJ, Durbin posted an angry thread last Friday lashing out at the justice.
He also took the chance to lash out against the chief justice as well, and push for the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, introduced earlier this year. Senate Republicans, especially those on the Judiciary Committee, have made clear that they will not support the bill, one of the many attacks against conservative members of the Court.
Alito himself called out the legislation in an interview published with the WSJ in late July, which had also earned Durbin's ire.
Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?
— Senator Dick Durbin (@SenatorDurbin) September 8, 2023
The Court is in a crisis of its own making.
Justice Alito and the rest of the Court should be doing everything in their power to regain public trust, not the opposite.
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.
— Senator Dick Durbin (@SenatorDurbin) September 8, 2023
Supreme Court Justices should be held to the highest ethical standards, not the lowest.
As the editors began their WSJ editorial, "Justice Samuel Alito said this summer that since the organized bar and other groups had refused to defend the Supreme Court from specious political attacks, he decided he had to do it himself," pointing out that he indeed did that with his refusal to recuse.
These aren't the only instances where the justice has stood up to Durbin, though. Alito and Roberts have gotten the better of such scurrilous attacks before. As Katie highlighted at the time, Alito in June, via the WSJ, spoke out against a ProPublica report going after him with claims that he should have recused himself in certain cases, as well as that he had been obliged to list certain items as gifts in his 2008 Financial Disclose Report. "Neither charge is valid," Alito wrote.
ProPublica had similarly gone after Justice Clarence Thomas, perhaps the Left's greatest target on the Court, though the reports were heavily criticized for being full of errors.
In April, Durbin had invited Roberts to testify before the Court on May 2. The chief justice declined though, schooling the chairman on the separation of powers and effectively telling him to stay in his lane.
Moore v. U.S., as SCOTUSblog summarizes the issue at hand, looks at "[w]hether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states." A date has not yet been set for oral arguments.
Join the conversation as a VIP Member