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Justice Alito: No Need to Recuse When Justice Has Been Interviewed by a Lawyer (or by Employee of Party) in a Pending Case
The matter involves a Wall Street Journal interview of Justice Alito, which didn't discuss the case in which one of the interviewers is a party.
From yesterday's statement by Justice Alito in Moore v. U.S., responding to a letter from Sen. Durbin that's available here:
Senator Durbin's letter expressed the view that recusal is necessary because I participated in two interviews that resulted in two articles about my work that appeared in the Wall Street Journal. The interviews were jointly conducted, and the resulting articles were jointly written, by James Taranto and David B. Rivkin, Jr…. Senator Durbin argues … that Mr. Rivkin's participation requires me to recuse because Mr. Rivkin, who is both a much-published opinion-journalist and a practicing attorney, is one of the attorneys in this case.
This argument is unsound. 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. His involvement in the case was disclosed in the second article, and therefore readers could take that into account.
There was nothing out of the ordinary about the interviews in question. Over the years, many Justices [citing Justices Breyer, Sotomayor, and Gorsuch and Chief Justice Roberts] 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 {[f]or instance, Bryan Garner has interviewed several Justices, and he argued a case three Terms ago}, and some have co-authored books with such attorneys [citing Justices Ginsburg and Gorsuch]. Those interviews did not result in or require recusal.
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.
Sounds quite right to me. While lower court judges occasionally recuse out of an excess of caution, on the theory that it's better to avoid any questions by just having some other judge hearing the case, that's not available to Supreme Court Justices: If a Justice recuses, this may yield a 4-4 division on the Court. As a result, the general view is indeed that Justices should recuse only when they have to, rather than erring on the side of recusal. And, for the reasons that Justice Alito mentions—and given the past practice that Justice Alito mentions—I don't think recusal is required based on this sort of interview.
Here, on the other side, is the portion of Sen. Durbin's letter that deals with Moore and the interview:
Moreover, this interview was conducted in part by David Rivkin. Mr. Rivkin is a partner at BakerHostetler LLP and is on the team representing plaintiff-appellants in the case Moore v. United States…. While this case has been pending before the Court, Justice Alito twice sat for interviews with Mr. Rivkin, once in April and again in July. Mr. Rivkin's access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito's ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties.
Note that Sen. Durbin also offers a separate argument as to Justice Alito's participation in Moore, which Justice Alito didn't discuss in his opinion:
The relationship between Justice Alito and Mr. Rivkin is also concerning because Mr. Rivkin is counsel for Leonard Leo with regard to this Committee's investigation into Mr. Leo's actions to facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008. This violates the Statement on Ethics by creating an appearance of impropriety.
I'm skeptical of that argument, but I leave it to others.
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FWIW I’ve never bought the “they have to sit” argument, which is just way too convenient (obviously they want to sit because they love the power they have). If we had a SCOTUS with much broader recusal rules, we’d just have a SCOTUS with much broader recusal rules. Sure there’d be some ties, but they would probably eventually get resolved and we’d also have a Court that probably had more legitimacy with the public. They don’t HAVE to sit. They want to sit.
Further, I also don’t buy that we have to accept all the “sitting on cases involving our former friends, clerks, etc.” I mean, obviously, we’re never going to get them to stop sitting on cases involving their former clerks, but imagine what an improvement it would be if they did stop! Suddenly all those clerkship bonuses and feeder judges and marketing to clients based on clerks and taking cases away from local counsel and all the other petty striving surrounding the Supreme Court would go away. You might actually have career staffers rather than clerks, which would be a better system anyway!
But no, I know that’s not going to happen. No reason they can’t have much stricter recusal rules, though. Congress should probably mandate it.
“Further, I also don’t buy that we have to accept all the “sitting on cases involving our former friends, clerks, etc.” ”
How many instances of this can you point to?
If a former clerk now represents a party before the Court is that reason for the Justice he/she clerked for to recuse?
I would have zero problem with Congress making that the rule. It would have an extremely salutary effect on the top rungs of the legal profession.
Under what authority can Congress make rules for the SC?
Inferior courts maybe but the SC is supposedly a co-equal branch.
Spending power and exceptions clause. Congress can condition funding on binding ethics rules. Congress can also condition their appellate jurisdiction on accepting ethics codes. They could pass a law saying the court does not have appellate jurisdiction over any case in which all the justices are not in conformity with the ethics requirements set out by Congress.
Those both seem like a stretch and unlikely. Seems that would create more problems than it would solve. Why has recusal become such a prominent concern now?
To me this seems like sour grapes because certain groups are unhappy with the Court’s recent decisions.
Unlikely, sure. Congress is to used to being deferential to the Court. But its not a stretch to say Congress can do it if they wanted to.
It would help if Congress got it’s own house in order.
For ethics issues they generally are. They are subject to binding ethics laws and rules and have ethics committees that can investigate these things. I mean Congress passed the STOCK Act, which to restrict its own ability to trade on inside information. This included criminal penalties. When Richard Burr got in trouble he actually was forced out of his committee chairmanship, and he and the others accused were investigated by their ethics committee and DOJ.
The level of effectiveness of the STOCK Act and the Congressional ethics system are debatable. But, it is orders of magnitudes better than SCOTUS’s “trust me bro” system.
Since you brought up Congressional Ethics:
Dick Durbin is a supporter of the tax on unrealized income that is the subject of this case. As a politician, he intends to use passage of the tax to gain support from his base, and he hopes to gain power over a larger federal budget. The case is therefore of deep personal interest to him, to a far greater degree than for an ordinary citizen.
Is it not, therefore, severely unethical of him to use his position, speaking as a senator, to try and tamper with the composition of the court for the brazenly open purpose of getting a tie, thus letting the 9th Circuit opinion (which boosts his political career) stand? Isn’t it extremely unethical of Durbin to pressure a judge to neglect his duty in a way that directly benefits Durbin?
Yeah, I agree with you: the level of effectiveness of the Congressional ethics system is debatable.
Your conception of “ethics” means elected politicians can’t use their political power to try to get their preferred policies implemented because that’s what their voters want. Do you realize how stupid that sounds?
Congressional ethics is an oxymoron.
They investigate themselves for the most part and might get a wrist slap.
Straw man, 5 yard penalty.
Of course he can use his political power to support the policy: Give speeches to the public in favor of the tax. Rally up senators to vote in favor of the tax, which he did. After it turned into a court case, he could even write an amicus brief to the SC explaining why the tax is constitutional. That’s totally different from asking a judge to improperly recuse from a case over a supposed conflict-of-interest that we all know is not real.
You seem to understand (I hope….) the difference between Trump asking voters to support him and his policies, versus asking the VP to just not count some of the votes. Try a little harder to understand the difference between a senator advocating for tax policy, versus tampering with the court’s membership to influence a particular case for his own benefit.
What is illegal or unethical under congressional ethics rules about asking for a refusal when there might be a conflict of interest?
Also if “tampering with the membership” to gain certain results is illegal, unethical or otherwise improper then you must concede that McConnell refusing to fill scalia’s seat in 2016 and then rejecting the logic he used to fill ginsburgs in 2020 was even more unethical and improper. After all Durbin wants a recusal in one case. McConnell kept the court tied for over a year to influence outcomes. Furthermore several senators were on record that they would keep the court 4-4 if Clinton won in 2016. Are you prepared to call that unethical?
As far as the official rules, I’m sure Durbin and Alito both are well within them. As far who is the scumbag on this particular issue, plainly and obviously it’s Durbin, who is trying to change a decision other than by arguing the merits.
Alito is clean here because it’s super obvious to everyone, including yourself, that he’s against a tax on unrealized income, and therefore there is not the slightest possibility that minor social interaction with one of the lawyers is going to change his position.
McConnell should have allowed the vote on Garland, and then the Republicans should have (and would have) simply voted him down. Which is a good thing, because Garland is an unusually evil person who ranks third in the nation, only behind Trump and Biden themselves, in prominent, brazen contempt for fair play and the rule of law.
But your comparison is still bad: McConnell was trying to influence the SC in general, with no specific case in mind, while Durbin is corruptly trying to influence a specific case. Do you understand why SC nominees decline to discuss how they’d rule on a specific case? Because that would be, you know, corrupt.
The argument – which Democrats and Republicans have made many times – is that it’s fair for the Senate to vote on judicial philosophy and past record, but not to use their vote to extract corrupt commitments to rule a particular way. Durbin is demanding an “Abstain” on a very specific case and isn’t even pretending it has anything to do with whether his preferred tax is constitutional.
Durbin is a scumbag because he
“ is trying to change a decision other than by arguing the merits.”
So every lawyer who asks for a recusal in a case or who invokes a procedural argument is a scumbag now? Does that make SCOTUS scumbags when they use procedural justifications to not rule on the merits?
“Alito is clean here because it’s super obvious to everyone, including yourself, that he’s against a tax on unrealized income, and therefore there is not the slightest possibility that minor social interaction with one of the lawyers is going to change his position.”
Alito is clean because we know how he’s going to rule on the merits anyway? Uhhhhh how is that better? Also: a lawyer giving a justice a softball interview for a major newspaper in an effort to help him deflect criticism is NOT a “minor social interaction.”
“because Garland is an unusually evil person who ranks third in the nation…”
Nobody, not even the most rabid partisans, and not even you actually believe this. You knew it was a dumb thing to say the moment you typed it.The reason he was floated for SCOTUS was because he was known as a down the middle moderately liberal judge that a lot of republicans respected. So no one considered him evil, let alone “unusually evil.” Indeed one of the reasons McConnell had to block him is because he probably would get out of committee and might have enough floor support to possibly get confirmed.
So every lawyer who asks for a recusal in a case or who invokes a procedural argument is a scumbag now? Does that make SCOTUS scumbags when they use procedural justifications to not rule on the merits?
Wouldn’t go that far, of course.
But I might as well admit that, yes, ordinary not-a-lawyer people like myself do think the process stuff has become too much of the game. We’d like more decisions and less finding reasons not to make a decision.
On Garland: I didn’t think Garland was the 3rd most damaging person in the country when he was nominated for the SC. Just a bad centrist, meaning someone who would tend to rule for the government and against liberty, whether from the left or right. His actions as AG are what led to his “rise” in the rankings.
By the standards you want the court to adhere to Congress is a lawless swamp.
Let’s take an example, a Senator is being interviewed by a journalist who during the interview suggests the Senator should support Green New Deal legislation the Senate is currently considering.
Totally out of bounds for Supreme Court Justice, but par for the course for a Senator.
It’s a bigger issue because Thomas and Alito (albeit to a lesser extent) are so corrupt, with a lot of questions about the Federalist Society and other justices (yes, including Sotomayor’s books, if you need some bothsides).
Could you name a case where one of those three judges ruled differently than they would have otherwise, because of some bribe (cash, yacht rides, book deal,….)?
I can distinguish between unwisely giving partisans an excuse to pounce, which all three are guilty of, versus actually selling a SC opinion.
Rulings are not a binary. There are plenty of ways to shade it that a little nudge could effect.
But more importantly ethics done right is not consequentialist, it’s either oriented on self-image or public image.
That’s a reasonable remark. But even then….can you trace something in one their opinions to a quid pro quo?
The evidence that would convince me is one of them going against their “normal” inclinations, coupled with some connection or gift or benefit.
I’d also concede that the appearance of impropriety is an important public concern. But I would reserve a serious charge like “corrupt” for the thing itself rather than the appearance of it.
In the cases of Alito and Sotomayor, I say it’s not even the appearance of impropriety. It’s merely the appearance of the remote possibility of impropriety. The “bribes” are either just too insignificant or too remote from the case at hand to take seriously.
can you trace something in one their opinions to a quid pro quo?
I just said ethics rules are not consequentialist, and you’re asking about consequences.
re: your ask, Rob Schenck has some thoughts on that – he had a long wooing of Alito on abortion stuff, and Dobbs is not a very judicial sounding decision, sounding more like anti-abortion leaders wrote it.
But in the end it’s always going to be an arguable point. Maybe Alito and Thomas and heck Sotomayor and Kagan have shaded their opinions within their existing norms, maybe they haven’t. That is not where I place my concern.
1) It is not supportable that they were not influenced just because all their decisions were within their usual ideological range
2) Ethics rules for public servants are not about preventing actual influence, they are about legitimacy and appearance. They are therefore a much higher bar than you envision.
3) Worst that the Justices have done based on the current rules is some insufficient reporting.
4) The Court badly needs some kind of ethics framework. I don’t care if it’s not enforceable, political pressure matters, if not to the Justices, to the Presidents that appoint them.
I don’t use the word corrupt; not quite that dramatic. But I do think this is a serious issue. And on both sides – law schools give some niiice benefits to liberal justices. Though unlike you I think Alito as well as Thomas are outliers. Though Alito less so than Thomas.
Sacastro comment “, and Dobbs is not a very judicial sounding decision, sounding more like anti-abortion leaders wrote it.”
Sacastro – you are grossly misrepresenting Dobbs if not flat out being dishonest.
Dobbs did not rule or make abortion unconstitutional. It merely returned abortion to the states to be decided via the democratic process where it belongs.
I guess our disagreement is more about degree than kind.
Asking justices to live like monks on a vow to renounce society, or like jurors sequestered for life, doesn’t strike me as reasonable. Nor do I think getting convinced during a lunch conversation is much worse than getting convinced by an amicus brief from the same person, even if that person picked up the check.
I’d say those vacations Thomas accepted should trigger a recusal if some case specifically relevant to his friend’s interests came up. Same with Sotomayor’s book deal. But I have no objection to the vacation or the book deal themselves.
Lunches, softball interviews, bottle of Scotch as a Christmas gift…..nah. That’s nothing.
“Dobbs must be correct because it didn’t do something absolutely insane and unprecedented” is not a good defense of Dobbs’s judicial reasoning and tone.
Tom: I don’t Sacastr0’s remark was out of line. Plenty of anti-abortion activists advocated returning the decision to the states, as one necessary step in a plan with multiple steps.
Not that I think Alito plagiarized, sold opinion text by the word, or any other corrupt act. I think he probably wrote exactly what he and his clerks believed.
Asking justices to live like monks on a vow to renounce society, or like jurors sequestered for life, doesn’t strike me as reasonable.
I think this excludes the middle. There are muscular ethics rules for lawyers and civil servants without anyone mistaking them for monks.
If we’re talking about some rules – any rules – we are largely in agreement.
I agree with our re: Thomas and when he would have to recuse. But that kind of close relationship is iffy, and at the very least his reporting fails were bad practice.
Entitled, one might say. Not something I want a Justice to feel, if it can be avoided.
Thomas and Alito are corrupt?
Corrupt:
“having or showing a willingness to act dishonestly in return for money or personal gain.”
There hasn’t been any corrupt act even alleged against them.
Please try to not throw around baseless allegations just because you disagree with how they read the constitution.
Some of their reporting failures would certainly rise to the level of willing to act dishonestly, done to avoid cutting off the money from billionaires. So corrupt fits.
Not reporting what you aren’t required to report is not a reporting failure.
Not reporting what you are required to report is a reporting failure. That applies strongly to Thomas, and somewhat to Alito.
There are rules regarding when a former clerk can appear before the court. I think it’s 3 years before they can appear? Justice don’t have to recuse once their clerk becomes an advocate and it happens literally all the time. Every recent solicitor general has been a former clerk. Pretty much most of the frequently appearing advocates are too.
How many instances of this can you point to?
If it happens infrequently then requiring recusal isn’t much of a problem.
So far no one has sought to answer.
I did. It happens with extreme frequency.
If so, how about some examples?
Sure. Well the big ones of course are the solicitors general. The current one, Elizabeth Prelogar was a Kagan clerk during her first term. Prior to that Clement was a Scalia clerk then became SG in the second bush term and then had 8 years as one of the most prolific SCOTUS advocates in some of the most high profile cases while Scalia was on the bench. Katyal of course was an SG and a prominent private advocate while Breyer his old boss was on the bench. John Roberts became a prominent advocate during the 90s after his time with Rehnquist. In fact I don’t think there has been an SG or principal deputy who wasn’t a clerk and didn’t have an extensive practice before their justices for much of their career.
The problem with Senator Durbin’s expectation is that it will lead to High Court cases in which one side or the other in a politically consequential case will force conflicts on the Court. Just hire a lawyer whose had lunch with the other side, and voila! recuse the Court down to the number you like.
Yes. If Alito gives in on this one, and other justices do the same, a whole industry will arise in which investigators assisted by heavy duty AI bots pore over decades of lunches, Christmas parties, media interviews, and tennis games to find some six-degrees-of-Kevin-Bacon connection between a hostile justice and one of the litigants. And as you suggest, a secondary industry dedicated to creating those connections, even before filing the case.
The “we have to sit” argument is also pretty funny because the choice presented is: would you rather have the possibility of a tie or have the case possibility decided by a guy who is a good buddy of one of the parties and owes him one? I can imagine a lot of people (such as the opposing party) preferring the possibility of a tie!
Allow me to propose a compromise to resolve the “sitting” issue. Whatever the SCOTUS recusal rules are or should be, a recused Justice is replaced on the case by a substitute from the Courts of Appeal, selected by the recused Justice.
I think this would solve the Supreme Court “ethics crisis” immediately. Indeed we’d never hear a word about this unicorn again.
re: “career staffers … would be a better system anyway!”
Objection – Assumes facts not in evidence. Career bureaucrats in the Executive branch have a blindingly poor track record at both the federal and state levels. I see no clear reason why that model would suddenly be better in the Judicial branch.
I expect Americans to impose adult supervision on the Supreme Court soon enough.
Re: Adult Supervision. You should perhaps get your own house in order before opining on such things.
Which house?
The no-mortgage house in which my family resides;
my political home (the liberal-libertarian mainstream, which has been kicking the bigoted shit out of conservatives in the culture war and shaping our national progress against the wishes of right-wingers throughout my lifetime);
or some other house?
Getting stomped by your betters in the modern American culture war seems to have made you cranky and disaffected.
Just to step back:
1) SCOTUS Justices are involved in ethics controversies, leading to calls for congress to impose ethics oversight on the SCOTUS.
2) One of the Justices involved in the controversies sits for multiple interviews, with a friendly outlet and journalists, where he argues against such oversight.
3) One of the journalists is a also a lawyer about to appear before the SCOTUS.
Perhaps this doesn’t reach the standard for recusal, but the ease with which Alito strolled into another ethics controversy is astounding.
This wasn’t a hard situation to avoid. The moment Alito saw that the interviewer was a Lawyer about to appear before him he should have insisted he had nothing to do with the interview.
And if the Alito didn’t know, and the Lawyer didn’t disclose, that should have had serious consequences for the Lawyer.
And if Alito thinks nothing of hearing cases involving Lawyers or litigants who socialize with him and do him favours (softball interviews) then that’s a much bigger problem.
Agreed.
It’s also really concerning that professor volokh apparently doesn’t understand basic ethics.
I find it notable that the loudest academic defenders of SCOTUS behavior regarding ethics (Blackman, the Gannetts, probably a few others) don’t teach professional responsibility.
If its basic ethics, then why has it never been the rule?
Not ever.
Most of us, thankfully, have well-developed senses of what’s ethical and what’s unethical, and we don’t need written rules to help us decide between right and wrong. Sadly, it appears that there are a few justices — I’m thinking of you, Alito and Thomas — who obviously need written guidance and maybe a few CLE seminars to help them distinguish between accepting an invitation to dinner at a neighbor’s house and joy-riding on yachts and private jets.
Or staying on a case where an attorney for and employee of a party in a pending case just did you a huge favor.
So it would appear the Alito crossed the line – though why not the uproar with Ginsburg as she was commonly involved in similar situations. Likewise with Kagan and her faux separation from the obamacare development
its both sides
You think Supreme Court Justices haven’t been hearing cases for over 200 years where they know the lawyers, the parties, socialize with them, mentored them when they were clerks, their kids go to the same schools, their wives belong to the same clubs,.etc.
It has always been completely completely normal for Justices to know the lawyers and the parties quite well, and until now it hasn’t been anything but expected.
Washington isn’t that big, and for most of the Republic it was much smaller.
‘We were super corrupt for centuries so it’s okay now’ is an awful argument.
It also totally ignores that judicial ethics and SCOTUS’s notable lack of standards have been a topic of discussion and criticism for awhile now.
Not really. It’s only been since the lefties went 6-3 behind, and they’ve started looking for new angles. It’s an “issue” because lefties have chosen to make faux ethics complaints an “issue”, in the hope of influencing the arithmetic. Lefties can make anything they like an “issue”, not excluding the color of Alito’s socks. Which obviously constitutes some kind of dog whistle.
Two and a quarter centuries of silence and now it’s time for co-ordinated hissy fits. Yawn.
My professional responsibility textbook was published in 2013 and they had a section on SCOTUS ethics complete with citations to prior criticisms of their lack of oversight. Just because you never paid attention doesn’t mean nobody else did.
Kazinski, that pattern of conduct has culminated in the worst legitimacy crisis in the history of the Court. Maybe saying, “Let’s not keep that up,” makes sense.
The legitimacy crisis is solely and entirely because people disagreed with key decisions, in particular on campaign finance, guns, and abortion.
I’m confident in saying there isn’t one single person here who sincerely cares about Alito’s lunch interview, Sotomayor’s book deal, or even Thomas’s fancy yacht ride in Indonesia, independent of how they vote. If the judges in each case habitually ruled the way the pouncers had wanted them to, the faux-concerns would disappear.
I’m confident in saying there isn’t one single person here who sincerely cares about Alito’s lunch interview, Sotomayor’s book deal, or even Thomas’s fancy yacht ride in Indonesia, independent of how they vote.
I think that’s overly cynical myself – too much time on the Internet I say.
But I’d also note that plenty on here are calling for a set of rules going forwards, nothing more. What about that?
Rules going forward can only help the conservative legal project anyway.* If people are confident that the justices at least aren’t super corrupt the unpopular decisions might be more palatable to the public and it would help stave off public pressure for bigger reforms or resistance to their decisions. Plus they would be respected more as people.
Indeed the backlash from Alito is probably doing more to harm to him and the conservative legal movement than ethics rules would. The public is seeing an arrogant jerk who is deluded by his own importance with a desperate desire to maintain a bunch of perks all while crying that anyone have the nerve to criticize him.
*that being said, Insofar as the American conservative movement is simply about being an arrogant and domineering grifting jerkass who becomes a pathetic crying baby when called out on that…he’s doing more to advance the ideology than anyone besides Trump himself.
Yes!
If Dick Durbin was arguing for:
– a general recusal rule,
– that applied only to future cases not already in the queue.
then I’d have to withdraw my accusation that he’s the bigger scumbag here. (Honestly though, none of this is that important. Durbin’s not on my top 25 list of bad senators.)
Oh, LOL I don’t care about Durban’s grandstanding. Nonsense Congressional letters to make hay have been a thing in America for at least a century.
Durban is a non-factor in my thoughts, except that Alito just can’t stop rising to the bait of peevish complaints he’s being persecuted.
Not a fan of Thomas, but at least he is not that thin-skinned.
I would give a lot of money for some law student to ask Alito to his face why he’s such a whiny piss-baby whenever he faces any criticism.
I wouldn’t give any money, but I’d be mildly interested in your proposed draft of Alito’s response to Durbin’s complaint, that
(a) rejects Durbin’s complaint and explains why it is unjustified and (b) does not meet your standards for whiny-piss babyness
Or do you think Supreme Court Justices should just retain a dignified silence, and never explain why they are rejecting whiny-piss baby faux ethics complaints ?
Including remaining silent when the silence is greeted with “Oh how shockingy, arrogantly rude ! Not even responding to a Senator’s letter. What a beast !”
It’s not just the letter. It’s everything about him over the last few years.
He claimed that Obergefell made it easier to call people who opposed same sex marriage bigots. “You’re being mean to me” is the most pathetic whiny criticism to that decision.
He couldn’t handle criticism of big decisions being made through emergency orders. So he gives a whiny speech to Notre dame law students where he complained about a specific Atlantic article criticizing it. Seriously. He was such a baby he at first didn’t even want it recorded.
He couldn’t handle the pro publica piece about his vacations so he tries to pre-but it in the WSJ in a laughably whiny way.
He is so salty about the possibility of Congress thinking about maybe looking into SCOTUS ethics that he gave this interview. Where he comes off as a bratty child claiming Congress has zero authority to regulate the court…which in addition to being whiny is false. Congress can do any number of things to regulate the court.
Oh and then there is him constantly complaining about the Dobbs leak and his potential assassination. Sonia Sotomayor was actually on a hit list of someone who had successfully murdered a federal judge’s husband and she talks about that way less than the phantoms trying to get Alito. Oh and while we’re on the subject of leaks…he complains about them the most, but someone from the conservative camp is leaking to the the WSJ.
None of the other justices are like this. Sorry dude, your hero is a whiny piss-baby. Among the most pathetic figures in politics.
Yes. “Whose Ox Is Being Gored” explains 90% of the complaints.
All the more reason for the Justices to be more careful and for there to be clear rules applicable to all.
“What’s wrong with having an old boys club? We’ve always had an old boys club!”
I did not gather from the story that the journalist-lawyer would actually appear before the Court. As I understood it, his is just one of the names on a brief.
If its basic ethics, then why has it never been the rule?
As one example Neal Katyal clerked for Justice Breyer, a relationship much more substantial than a lawyer/journalist conducting two published interviews. Katyal has argued 48 cases before the Supreme Court almost all of them when Breyer was on the court.
How many former students, some of which she surely must of socialized with, will Elena Kagan have appear before her?
“If it’s basic ethics that slavery is bad, why hasn’t anyone banned it yet?”
—Some guy like you circa 1720.
I’m sure you’re on record criticizing Katyal and Breyer. Just remind us all when you said that.
No. But here it is now: Neal Katyal sucks and is a prime example of the worst tendencies of the SCOTUS bar and the legal field in general. Breyer sucked too. Happy?
Throw Breyer under the bus…..after he’s off the court and can’t do anything for you. And he didn’t even do anything wrong.
What a brave display of criticizing your own side.
I mean I can’t go back in time to post Breyer sucks. But I never thought he was that great and was always miffed that he had so many private investments.
In the spirit of comity I’ll decide to believe you were upset with Breyer all these years.
I merely thought his judicial philosophy and understanding of the constitution sucked. Couldn’t care less if he ate lunch every single day with Neal Katyal. Nor did I care, or know anything about, his personal investments.
But you do have to admire LTG’s sang froid. He can keep his indignantly righteous fury about the lack of an ethics rule about something to do with Justices giving interviews under tight lipped control for 233 years, before he finally can’t take it any more.
Give the guy a job in bomb disposal.
You think I’ve been alive for 233 years?
Yeah, I’m happy. I understand you perfectly. You weren’t bothered about it when it happened with Katyal and Breyer. But it’s important to you now. Why? That’s totes a mystery.
The commenters here insisting that everyone else is being purely instrumental, have no principles, and are just lying when they claim anything otherwise are saying quite a bit about themselves.
They’re saying that they have at least a cursory knowledge of politics, human nature, and the commenters here.
Or are you really trying to argue that the outrage here isn’t 80% generated by Dobbs?
I have no idea what other people’s secret motives are.
The Thomas story seemed pretty newsworthy in its own to me, not some journalistic revenge for Dobbs. The stories since then seem like just follow ups after the first scoop.
This is as likely and explanation as your cynicism.
Gaslightro : The commenters here insisting that everyone else is being purely instrumental, have no principles, and are just lying when they claim anything otherwise are saying quite a bit about themselves.
Not quite a lot, just a bit.
That we weren’t born yesterday.
Reflexive cynicism to fill in facts you cannot know means you are either pretty instrumental yourself or live a life unrealistic self regard over everyone else.
Bottom line – going after people’s secret motives based on speculative hypotheticals is not an argument.
Not gaslighting. Not even just a bit.
How do you know that?
Because there is more reporting about it now and articles to post under? I don’t know if you knew this, but time is linear, and new events lead to new reactions to things.
Barring former clerks from appearing before the court is obviously impractical, but it also misses the point.
For one, there’s a lot of former clerks and their qualifications and interest in constitutional law make them obvious candidates to appear before the court.
Secondly, they’re former clerks. They probably have some friendship and ideological alignment, but there’s no serious consequences to either if the relationship sours.
On the other hand, Alito used the interviews as a public platform to defend himself from ethics accusations and stave off ethics oversight. He had a strong interest in the outcome of the interviews and of the good will of the interviewers.
The conflict was easily avoidable, it would be easy to substitute either a lawyer on the case or an interviewer for the article.
Second, the transactional aspect is obvious. Imagine Alito said something disastrous during the interview. If the interviewer does what a normal journalist would do and report on the comments he’s suddenly now pissed off Alito right before his client’s case.
Softball interviews are tantamount to bribery!
OK, if you want to try to make that argument, fine.
But reporters who make that argument are exhibiting severe lack of self-awareness.
Not quite bribery, but on the spectrum.
And the difference between this and a normal softball interview is in a normal interview the reporter doesn’t have much to gain outside the obvious of more people agreeing to be interviewed.
In this interview the reporter had the benefit of his client potentially getting better treatment from the judge, that’s what makes it transactional.
That’s why journalists typically declare potential conflicts of interest, the WSJ article is paywalled…. but I’m going to go out on a very sturdy limb and assume Rivkin didn’t let readers know his client was appearing before Alito.
Like a former Vice President and now President?
Or like a former President now charged with many felonies.
What norms are you thinking of? Here’s a small list of norms that Trump broke.
https://www.washingtonpost.com/graphics/2020/lifestyle/magazine/trump-presidential-norm-breaking-list/
To be fair to Senator Durbin, this is one of those partisan moves (unlike changing the filibuster rules for example) that isn’t going to get up and bite him in the backside.
Since there are waaaaaaaay more lefty lawyers than righty lawyers, the odds on the sort of conservative lawyer who might appear before the Supreme Court being personally acquainted with a conservative Justice are waaaaaaaay higher than for lefty lawyer and a lefty Justice.
Hence “RECUSE if you’ve ever even been in the same building as him !!!!!! ” is a good slogan for trying to get conservative Justices to recuse, with a much lower risk that the shoe would ever be on the other foot. (Not that if it ever was, it would still be a “shoe.” It would have morphed into a “sandal” and that’s totally different.)
It’s like playing battleships when your enemy is hiding his fleet in a ten by ten square, while you hide yours in an eighty by eighty square.
Open fire !
Or.
The law firm would just pick a different lawyer to argue the case.
No one is going set themselves up for a recusal of a friendly judge.
This assumes an unlimted supply of heavyweight advocates in the relevant field, and / or an unlimted supply of law firms. That are on your side.
But you have hit on the right answer – the point is to try to force conservative litigants to use inexperienced second stringers, particularly in the post season, where it matters.
Which is why Alito’s robust “go forth and multiply” responses are so infuriating. He’s making it clear that conservative litiganrs, like lefty litigants, can choose the representation they want. Which is obviously unfair.
No,
The point is to restore trust in the least accountable arm of the US government.
By restore trust you of course mean rule in the way you would like.
I mean I would like them to rule less badly.
Bad rulings are one thing. Bad rulings from unaccountable and arrogant jerks who get whiny at the slightest criticism and are bathed in wealth and flattery by interested parties seeking those same outcomes is unacceptable. If they’re going to issue bad decisions and be shitty people at the same time I see no reason why anyone should respect them or their decisions.
Work hard and maybe someday you to can be a justice (God forbid).
The least accountable arm of the government?
Probably a tie between Congress and the President.
Take for instance Insider trading,
97 Members of Congress Reported Trades in Companies Influenced by Their Committees
http://www.nytimes.com › U.S. › Politics 9/13/2022.
That’s always been forbidden for Justices, they do allow justices not recuse when they own broad market mutual funds that own hundreds of stocks, but direct holdings or trades with any company with business before the court would require recusal.
And an outside body, Congress can remove justices, Congress is the only body that is not subject to oversight by an external body.
How are unelected life time appointments with un-reviewable decision making power more accountable than elected officials whose work is reviewed by courts?
“Congress can remove justices, Congress is the only body that is not subject to oversight by an external body.”
Setting aside the, uh, electorate, they are also are routinely investigated and prosecuted by the executive branch for breaking laws. And individual members are accountable to the whole body which can subject them to discipline.
SCOTUS can’t kick out misbehaving justices or discipline them in anyway.
You posted something that Congress reported as evidence Congress is unaccountable?
Your tu quoque suuuucks. The comparison itself is a fallacy and distraction, and then your example rather goes the opposite direction you claim it does.
“direct holdings or trades with any company with business before the court would require recusal”
Um, everyone here knows there are no binding ethics rules for SCOTUS. That’s why this discussion is taking place. Did you really think you could lie and say there are binding ethics rules for SCOTUS and be taken seriously? Are you stupid?
If a Justice recuses, this may yield a 4-4 division on the Court.
That also happens when the Senate leadership refuses to take any action at all on a nominee for over a year. The difference, of course, is that when a Justice recuses, a 4-4 decision is only a possibility in that one case. If it is something that might happen regularly, then I would think the problem would be Justices that regularly put themselves into positions where they would need to recuse.
It’s almost as if their argument is in bad faith.
I think the (alleged) quote from Jesse Unruh in reference to lobbyists is relevant here:
No Justice should be confirmed if the Senate believes that the nominee won’t meet this very minimum standard.
If I was on a jury I would have little problem convicting even a family member of a good friend of a capital crime if the evidence warranted it. I certainly believe that the cream of the crop of the legal profession could do the same and these interviews come nowhere close to being in that class of conflicts.
Would we really want the Supreme Court bench to be populated by hermit paupers to avoid conflicts of interest? And even if the bench were so populated, the arguments would then be made that the bench was unable to relate to the common man and/or the largest corporation and was therefore unqualified to serve.
If I was on a jury I would have little problem convicting even a family member of a good friend of a capital crime if the evidence warranted it.
You have that much confidence that you would be able to check all of your cognitive biases, conscious and subconscious? Sorry to say it, but if I was the prosecutor, I would still challenge your fitness to be on the jury and no judge would deny that motion. I wouldn’t even need to use one of the limited number of peremptory challenges to do it.
It would be awesome if people could counter their own biases that easily and completely, but no one is that rational.
I certainly believe that the cream of the crop of the legal profession could do the same
Education is supposed to help people develop critical thinking skills that will assist them in overcoming cognitive biases, among other things, but it is not a magic bullet for that. Especially when people spend their post-education careers in political and ideological positions and network with colleagues and activists that have the same biases that they do. Oh, but once they get appointed to the bench, then they will start turning off the effects of 20+ years of involvement with the politics within the legal profession and be neutral, right?
Would we really want the Supreme Court bench to be populated by hermit paupers to avoid conflicts of interest? And even if the bench were so populated, the arguments would then be made that the bench was unable to relate to the common man and/or the largest corporation and was therefore unqualified to serve.
That’s a straw man. Avoiding gifts from and socializing with extremely wealthy political activists is not going to make anyone a “hermit pauper”, especially when the salary of a Justice is over $200k a year. That’s not wealthy, by any means, but it is still high enough to push the top end of what could be considered middle class. Not to mention that they could still have savings from times before being appointed to the bench when they earned considerably more than that. And I don’t see how being limited from hobnobbing with the wealthy would make it harder for them to relate to the “common man”, nor why they should need to be able to do so to relate to the largest corporations or why that would be desirable anyway.
Durbin has no room to be casting stones about the ethics of others.
Someone on Twitter made what I thought was a good observation: the same people arguing that it’s no big deal for justices to socialize with lawyers and elites who appear before them — arguing that justices won’t be swayed by social interactions — had a tantrum about Bill Clinton meeting Loretta Lynch at an airport.