Talking to the Justices About References

ABC News reports, "Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration." ABC obtained a statement from Justice Alito to explain the context:

"William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position," Justice Alito confirmed to ABC News Wednesday. "I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon."

"We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed," Alito said. "We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect."

I have a few thoughts on this story.

First, let's start with the byline: Katherine Faulders, Jonathan Karl, and Devin Dwyer. Dwyer is ABC News's Supreme Court Correspondent. Since he is listed last, I think it is safe to assume this was not his scoop. Karl is ABC News chief Washington. Again, if this was his scoop, I would think his name would come first. Faulders is a Senior Reporter at ABC News. I am not familiar with her work, but she has written many recent stories about the Trump cases. Given that her name came first, she was probably the person who obtain the information.

Second, how did Faulders obtain this information? Again, it is not clear that she has "sources" within the Supreme Court. And I can't even imagine who in the Court would have told her this! Justice Alito? Someone in the Alito chambers? This is unthinkable, especially after the Dobbs leak. The story provides very little information about the sourcing:

Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration, ABC News has learned.

If the info did not come from the Court, the most likely source is from the other end of the call. No, I don't think President Trump spoke to Faulders. More likely? Trump told someone that he spoke to Alito, and that person told someone else, and that someone else told the press. Or maybe something like that happened.

NEWS -- Supreme Court Justice Alito spoke to Donald Trump Tuesday to recommend a former law clerk for a job in the new admin. Call occurred hours before Trump's lawyers asked the justices to block Trump's criminal hush money sentencing. Reporting w/ @jonkarl & @devindwyer

— Katherine Faulders (@KFaulders) January 8, 2025

Third, ABC News, and other outlets, are spinning this as President Trump talking to Alito shortly before Trump's emergency petition was filed. And Alito's comment says he wasn't aware that the petition had been filed when he took the call. It was safe to assume that Trump would go to the Supreme Court as soon as Judge Merchan scheduled the sentencing for Friday. But I don't think it would have mattered if Alito knew the petition was coming, or if Trump spoke to Alito after the petition was filed.

Fourth--and this may come as a shock--Judges are allowed to talk to parties in litigation about matters that do not concern litigation. It's true! The problem with ex parte communications is that a judge may disclose some information to only one party. But no cannon of ethics prevents a judge from having unrelated communications with someone who has an interest in the litigation. Judges are not hermits. Trust me, this happens all the time. And I think it often occurs in the context of job recommendations. I can prove it.

In 2016, Vice News used FOIA to obtain email correspondences between the Department of Justice and Supreme Court Justices. A November 2013 email was sent from Solicitor General Donald Verrilli to Justice Sotomayor about a law clerk applicant.

Dear Justice Sotomayor: I understand that [redacted] has given you a call to discuss [redacted]. I assume he has provided you with the information you need but if I can be of any further assistance I'd be most happy to talk with you. Thanks for reaching out to us.

To be clear, the Justice reached out to the SG about a potential law clerk, and the SG returned the message and offered to speak to the Justice.

At this very time, several very important cases filed by the SG were pending before the Supreme Court, including Noel Canning, Hobby Lobby, and more. Just one week earlier, Verrilli had argued Bond v. United States. This correspondence is not unique. I've studied the papers of many Justices. And they are replete with letters and correspondences with lawyers and parties involved in litigation. (I have in my files correspondences between Justice Brennan and Lawrence Tribe, who was a frequent litigant before the high court.) Is there any suggestion that it was inappropriate for a sitting Justice to talk to the top lawyer for the government about a job reference? Of course not. Why?

Fifth, with Trump, everything is different. The subtext of the ABC News article is that Trump was making the phone call for some illicit purpose--that he was trying to gain some influence on Justice Alito, or affect how he would rule in New York case. Is there any evidence of this? Of course not. What we are left with is yet another instance where Trump is denied the sort of customary privileges that are afforded to all other politicians. Trump can't even make a phone call to get a reference. As I recall, he was impeached based on a phone call. More of the same.

Update: Mollie Hemingway explains at The Federalist what should be obvious: the ethical guidelines expressly allow judges to receive calls from appointing authorities in the executive branch for references:

Federal judges and Supreme Court justices provide references for former clerks regularly, in the same way that other employers provide references for former employees regularly. Ethics guidelines for federal judges acknowledge this reality and mention how to handle such scenarios in the Published Ethics Advisory Opinions.

These guidelines say judges providing job references should not initiate contact with Congress or the White House, and should not respond to media requests in support or opposition of a nominee, but "there would be no impropriety in a judge answering an inquiry from a screening committee or appointing authority with respect to the judge's knowledge concerning the qualifications and other relevant factors of a nominee for appointment to any public office."

Will Levi is clearly in line for a presidential appointment. It was entirely proper for for Trump to call Levi's old boss, Justice Alito.

Comments

[Noscitur a sociis]

It was safe to assume that Trump would go to the Supreme Court as soon as Judge Merchan scheduled the sentencing for Friday.

It was?

[Lee Moore]

Why does Trump want to avoid the sentencing ? Until he's sentenced he can't appeal.

[Frank Drackman]

How many years do you think Merchan will get?

[windycityattorney]

Easy. Zero.

Trump set himself up for a pickle here. If he orders Pam Bondi Atty Gen to go after Merchan; she will have to likely suggest the appointment of special counsel due to the obvious conflict of interest of Merchan presiding over Trump's trial. But as we learned from the esteemed judicial brain that is Aileen Cannon; the AG can't appoint a special counsel that isn't named by the President and affirmed by the Senate. But the President is the one with the conflict; any person he names would therefore also be conflicted so no special counsel could exist to meet the qualifications. So Merchan can't be charged w/anything.

[David Nieporent]

Why does Trump want to avoid the sentencing ? Until he's sentenced he can't appeal.

He wants to appeal interlocutorily w/o being sentenced first.

[windycityattorney]

Interlocutory appeals in criminal cases are highly disfavored. I think he did it anyway on the immunity question (whether certain of his WH staff should have been barred from testifying) but he also raised that issue in his post trial motion which was already denied by Merchan. So Trump could have simply made that part of his appeal to the underlying conviction. But its Trump.

Now he is saying the immunity decision (Trump v US) bars his sentencing completely because he is at the "apex" of his presidential transition. What the fuck is an apex of a presidential transition? Saur can be an idiot sometimes. They make big hay about how the trial Judge was so mean and scheduled his sentencing a mere 10days after denying the post trial motion (even though the judge has moved the sentencing back repeatedly at Trump's request!). How do you complain about delays that you requested with a straight face?

[Jason Cavanaugh]

"Now he is saying the immunity decision (Trump v US) bars his sentencing completely because he is at the "apex" of his presidential transition. What the fuck is an apex of a presidential transition? "

It means "I'm Trump and the law shouldn't apply to me," just like all of his other motions and complaints in his other cases.

Sauer is doing exactly what his client wants him to do, and that for which he knows he will never receive any kind of sanction or punishment.

[David Nieporent]

In 2016, Vice News used FOIA to obtain email correspondences between the Department of Justice and Supreme Court Justices. A November 2013 email was sent from Solicitor General Donald Verrilli to Justice Sotomayor about a law clerk applicant.

Blackman is being disingenuous again. Verrilli did not have any cases before the Supreme Court. He was SG. But Trump is not a lawyer. Trump is a litigant. And litigants doing favors for judges who are hearing their cases is not a social conversation between lawyer and judge.

[TwelveInchPianist]

"And litigants doing favors for judges..."

Is lawyers who represent litigants doing favors for judges any different?

In any event, talking about a former law clerk isn't necessarily a favor. It looks like Alito was doing his former clerk a favor.

[Noscitur a sociis]

I don’t think this is a big deal, but Alito was (presumably) asking for Trump to do something, i.e. hire the clerk. That is precisely the situation you’d be concerned about.

[TwelveInchPianist]

"Alito was (presumably) asking for Trump to do something"

How so? It may be different if Alito had reached out, but here there's no reason to think that Alito had any interest special interest in helping his clerk out, other than the normal interest in helping someone out.

It seems like it's on the same level as claiming that the NY judge had a conflict because she was married to a health care executive.

[Lee Moore]

Alito was (presumably) asking for Trump to do something, i.e. hire the clerk.

Trump called Alito. Alito didn't call Trump.

Trump called about a possible appointment he was considering, and wanted Alito to give some kind of reference for the potential appointee.

That is Trump asking for something, not Alito asking for something. When added to Trump's motion, that makes it Trump asking for two things, and Alito asking for zero. This is not how quid pro quos work.

[Malika the Maiz]

I think it was more Alito’s clerk asking for a position from Trump and a recommendation toward consideration for that position by Alito, no?

[Lee Moore]

That's not how any reference I've ever been asked for worked, but who knows what goes on in government jobs.

The way I'm familiar with is - you apply for a job, or you get headhunted (ie the potential employer seeks you out); you go for a chat, the potential employer says "Great ! Have you got any references, people I can speak to about you ?" and you say "Yes, I do ! I'll call him/her/it and ask him/her/it to expect your call."

With the sort of government job that the President might be personally interested in, I find it hard to believe that you actually apply. Somebody says "what about that Malika ?" And Malika is invited in for a chat.

The referee is not selling the applicant, the sale has already been made, subject to acceptable references.

A bit like the Senate giving "advice and consent." That bit comes at the end, once the deal has been formulated.

[Commenter_XY]

I am familiar with the same way, it is called 'reality' 🙂

= The way I'm familiar with is - you apply for a job, or you get headhunted (ie the potential employer seeks you out); you go for a chat, the potential employer says "Great ! Have you got any references, people I can speak to about you ?" and you say "Yes, I do ! I'll call him/her/it and ask him/her/it to expect your call."

This seems pretty routine for anyone coming into a senior position. I have done exactly this kind of thing in private industry.

[Joe_dallas]

I will add that in my industry an applicant will often have worked at another firm, and the hiring employer will know another peer at the applicants former firm and get quality/honest feedback on the applicant from the former coworker and/or supervisor who wasnt one of the applicants listed references. This is likely true in several other industries and government positions as well.

The few times I have used this method to get feedback, I have gotten very honest evaluations.

In summary commenter comment is very similar to what happens in many industries.

[Malika the Maiz]

From the OP:

“William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position," Justice Alito confirmed

[tylertusta]

That's not how any reference I've ever been asked for worked, but who knows what goes on in government jobs.

Huh? That's how they work.

Applicant lists work reference. Hiring company calls reference to verify. Part of that verification is asking how they did in that previous role.

I've been called many times as a reference for former employees who left on good terms.

[David Nieporent]

I like the naïveté of thinking that the president of the United States (or even the president-elect) normally personally calls references for job applicants. Or that a BigLaw partner/Supreme Court clerk needs a job reference.

I'm sure Alito is savvy/cautious enough not to have discussed Trump's appeal in the discussion, but he kind of undermines his own credibility when he pretends he didn't know Trump was going to file the appeal.

In any case, I bet the Venn diagram between people here saying, "Yawn, nothing to see here" and "Oh my god Bill Clinton had a brief social meeting with Loretta Lynch" is a single circle.

[LawTalkingGuy]

Also Trump is a party in another case before the court: he filed a brief in the TikTok case which surely Alito was aware of!

[David Nieporent]

Well… that's a bit different. That was a quasi-amicus brief; he's not a party to that case. And even assuming the case lasts beyond 1/20, Trump would at least formally only be in the case in his capacity as an officeholder, not personally. (Of course, I'm not sure Trump knows the difference between personal and professional.)

[LawTalkingGuy]

Fair. I should have said an interested person? This is a weird one because he’s a bit more than an amicus in this situation. More akin to an intervenor, although he’s trying to claim he’s non-aligned?

[TwelveInchPianist]

"I like the naïveté of thinking that the president of the United States (or even the president-elect) normally personally calls references for job applicants."

You don't think people hiring high-level applicants call former bosses and others to talks about the applicant?

Not the BS boilerplate reference checking that can be done by a low-level HR person, but often people want to get a sense of the candidate. I mean, that sort of thing is highlighted in the post with Verilli and Sotomayor as well.

[Bob from Ohio]

"normally "

I like Trump but there is nothing "normal" about how he operates.

[David Nieporent]

You don't think people hiring high-level applicants call former bosses and others to talks about the applicant?

I don't think the president of the United States (or even the president-elect) calls former bosses and others to talk about applicants. We're not talking about hiring a new high-level applicant to fill an opening; we're talking about hiring hundreds of such people all at once. I think a president hires a chief of staff and a few other inner circle senior advisors and then tasks them with hiring the rest of the administration.

Also — as someone pointed out above — this person already worked for Trump! (And not for Alito in the interim.) So what is Alito going to tell him now?

[Bob from Ohio]

"worked for Trump"

Do you think Trump knew all 3 million federal employees?

What facts do you have that Trump knew this staffer even existed?

[David Nieporent]

Do you think Trump knew all 3 million federal employees?

What facts do you have that Trump knew this staffer even existed?

He was Bill Barr's chief of staff, not the guy who works in the coatroom at the Smithsonian.

[David Nieporent]

And of course even assuming Trump didn't know Levi personally, there would be scores of people Trump does know from his administration who could give him feedback on Levi. Or bunches of Republican senators — including Mike Lee. Or other BigLaw partners who have worked with Levi. Or Judge Scirica, for whom Levi also clerked. None of whom are hearing Trump's emergency criminal appeal.

What information could Alito provide, even if one bizarrely believed that Trump was personally calling a job reference?

[Bob from Ohio]

"He was Bill Barr's chief of staff, not the guy who works in the coatroom at the Smithsonian."

He was a staffer with an impressive title. You don't know if the two ever met or talked.

[Kazinski]

You know of course that Barr and Trump did not part on the best of terms.

Trump may well have needed another perspective, other than Barr's recommendation, or just his resume.

But I wouldn't be surprised if that was just an excuse, and they talked about another subject, most likely Alito's tenure on the bench.

[MaddogEngineer]

There it is...pretext!

Was wading through the comments looking for the first mention.

[Bubba Jones]

This isn't Trump *asking* for feedback. This is Trump *offering* to hire someone that Alito might like.

Just like Trump offering to replace Kennedy with someone he preferred.

I think it's impossible to avoid these kinds of conflicts in a world where people change jobs, but let's get the directionality straight.

[Michael P]

In my experience, that's not how reference checks work. Prospective employers think someone who worked for me would be a good hire, they call me as a reference, and I relate my experiences with the job applicant. The prospective employer (Trump in this case) asks the reference (Alito) to give them my time and information on behalf of a mutual acquaintance. As Lee Moore points out, reference checks usually happen late in the recruitment process (I think out of respect for the reference's time).

There are potential conflicts of interest if the employee still works for the person used as a reference, but that doesn't seem to be the situation here.

[Malika the Maiz]

It’s common for a job-seeker to ask potential references if they will be a reference for them.

[Michael P]

Yes, that supports my point that a reference call is most clearly a benefit to the candidate, secondarily a benefit to the potential employer, and a (time) cost for the person used as a reference. There's no sane way to spin it as Trump doing some kind of favor for Alito.

[Malika the Maiz]

You know, former employers can often have a great deal of affection for former employees. Justices choose their clerks and the clerk is associated with the Justice for their professional career. It’s a lot like a dissertation chair/supervisor and their doctoral student.

[Michael P]

You know, you have yet to make a relevant point.

I would give positive references to a lot of people who used to work for me, although others I would only confirm the dates they worked for me. Even for the one I am most fond of -- who was my peer before I became a manager, and who was a good friend in addition to being a colleague -- hiring him would not be any kind of favor to me personally, nor would asking me to be a reference for him.

[Malika the Maiz]

You don’t care about your peer/friend getting a fantastic opportunity? You don’t feel any vicarious satisfaction or appreciation of that? And maybe especially so after you “put in a word” for them?

[Michael P]

I would care, but it would have absolutely no effect on my judgment in any matter whatsoever. It's nice for him and that is all. I think that is the typical perspective for people whose emotional development has progressed past middle school levels.

[Bubba Jones]

It's interesting to see the difference between people who cultivate a network, and those who do not.

They can't even recognize it in other people.

e.g.

Behind the scenes, the president worked for months to assure Kennedy his legacy would be in good hands. “I think the Gorsuch nomination had a huge impact,” one law professor said.

https://www.vanityfair.com/news/2018/06/donald-trump-justice-anthony-kennedy-retirement

[Malika]

"I would care, but it would have absolutely no effect on my judgment in any matter whatsoever. "

Well, that's nice, but conflict of interest protections are not built with angelic supermen like you in mind. Instead, they suppose that when people can get something like the appreciation of X hiring Y's guy, then Y's judgement in matters up to them dealing with X may be influenced.

[Joe_dallas]

Michael P 8 hours ago
"In my experience, that's not how reference checks work."

Agreed, very often the case, the future employer knows someone who worked with or supervised the applicant at a prior job and will contact such person to get a more candid feedback on the applicant. Its often a person the applicant has not provided as a reference. It happens frequently. I have had two cases where my contact gave me a very candid "do not hire" response that I would not have gotten through the standard reference procedures.

[David Nieporent]

In any event, talking about a former law clerk isn't necessarily a favor. It looks like Alito was doing his former clerk a favor.

If I want something — whether for myself or my friend — and you do it, you have done me a favor.

[ObviouslyNotSpam]

If this had been anyone but a well known, proven bad actor like Trump, such a call for "references" would have appeared fairly innocuous. But given that it was Trump, we can safely assume that (a) he's lying about its purpose and (b) that he was up to no good. The subsequent petition explains both.

Moreover, Trump's call was ostensibly an "innocent" call about a potential employee, but the article reveals that Levi had served in the previous Trump Administration as Attorney General Bill Barr's Chief of Staff--he had already been an employee. What possible insight could Alito provide about Levi's suitability for employment in his administration which Trump didn't already know?

Not that it matters, though. If Alito didn't already know what Trump wants from him, one phone call won't change that! To be sure, we're well beyond Trump giving a flying fuck about appearing to be "presidential". He knows he can do whatever he wants--he's got immmmunitay!

[Bob from Ohio]

"Trump didn't already know?"

Dude was just a staffer for a cabinet officer. Little chance Trump had any significant contact with him.

Barr of course is on Trump' naughty list these days so maybe Levi wanted something to counteract the taint.

[ObviouslyNotSpam]

Chief of Staff is not "just a staffer", but your point about Levi's association with Barr is relevant. Josh's later follow-up article reveals that this was likely an attempt by Levi to bolster his "loyalty", which allegedly had been questioned by several members of Trump's transition team.

(Which prompts the question: what exactly did he do for Alito which could have reassured Trump of his "loyalty"?)

[Bubba Jones]

Trump has already proven his skill at offering Justices what they want through their proteges.

https://www.vanityfair.com/news/2018/06/donald-trump-justice-anthony-kennedy-retirement

[SRG2]

yet another instance where Trump is denied the sort of customary privileges that are afforded to all other politicians.

CMAFR

[JoeFromtheBronx]

The JB bat signal rises again in an Alito-related story.

"As I recall, he was impeached based on a phone call."

Uh-huh. "Trust me." Nah.

[Dr. Ed 2]

My guess is that this is an attempt to smear the candidate, particularly if it is someone who has to be confirmed.

Who would do this -- my guess is someone who was supporting someone else for the job. Gotta love the cutthroat politics of DC.

[JoeFromtheBronx]

"To be clear, the Justice reached out to the SG about a potential law clerk, and the SG returned the message and offered to speak to the Justice."

To be more clear, going by the email, the justice reached out to (redacted) about a potential law clerk who gave her information & the SG offered to talk to her if it would be helpful.

She also didn't talk to President Obama. If Alito talked to let's say someone at Pam Bondi's office about a potential hire, it would have been somewhat less newsworthy.

[F.D. Wolf]

Of course, judges can talk to litigants, as long as they don't talk about a case. I was many years ago the assistant county attorney in a small border county in Texas. There were three judges in the county (a justice of the peace, a county judge, and a district judge), and I had cases or pending cases with them literally every single day, as did practically every private litigator in the county. To suggest we could never exchange a word outside the court would be patently absurd.

[Noscitur a sociis]

Did you have cases before them as a litigant, or as an attorney? And did they ever ask you to hire someone right before you asked them to grant you some form of extraordinary relief?

[F.D. Wolf]

I really don't recall; it's been a long time. But, it is Trump and Alito, so we can safely assume it was nefarious, and someone should introduce Articles of Impeachment against both of them immediately. It's the only way to save democracy.

[JoeFromtheBronx]

"But, it is Trump and Alito, so we can safely assume it was nefarious"

This is likely sarcastic though is more "kidding on the square."

Yes, it doesn't help given their track record.

[TwelveInchPianist]

And again, why do you think Alito asked Trump to hire the guy?

When I give professional references, I don't ask the person to hire the other person, and I feel like I'm doing a favor, not asking for one.

Now, if I have a friend or a relative that needs a job, I might ask someone I know for a favor, but there's no evidence that that happened here.

[Noscitur a sociis]

And again, why do you think Alito asked Trump to hire the guy?

Because that’s what the reporting that Prof. Blackman quoted said.

[TwelveInchPianist]

No it didn't.

[LawTalkingGuy]

If there’s one thing we know about small Texas counties, it’s that they’re bastions of ethical conduct.

https://www.abajournal.com/news/article/top-texas-court-tosses-capital-conviction-because-prosecutor-was-also-clerking-for-the-judge

[MoreCurious]

Good Lord, Blackman! Is there any limit to your unending efforts to convince us that Alito is not the most unethical justice ever (with the possible exception of Thomas)? Any other judge -- local, state, or federal -- would have declined to have a private conversation with Trump at this time about any topic. Not only should Alito recuse himself from dealing with Trump's emergency application, he should resign. Then, with any luck, he will be replaced by a justice who understands and complies with the same ethical standards that we all deal with. It's about common sense. It's about the appearances of impropriety. These are concepts that Alito seems to struggle with.

[TwelveInchPianist]

"Any other judge -- local, state, or federal -- would have declined to have a private conversation with Trump at this time about any topic."

Even if your unsupported claim were correct, it's not an argument. There's no "no other judge would have done this" rule.

[MoreCurious]

Should I assume from your comment that you have not problem with the private conversation between Trump and Alito?

[TwelveInchPianist]

As the OP points out, there's no prohibition on judges talking to litigants about unrelated matters.

If I were king of judicial ethics, I may or may not make different rules, but I'm not.

[santamonica811]

I think Curious was asking about your own personal take. We all get that, in Jan 2025, there is no enforceable code of ethics for the Sup. Ct. Given that, therefore, we already know what the "the law is..." answer is. It's understandable that we'd be interested in people's feelings about what the "the law *should be*..." answer is.

This is, after all, in response to a layperson's OP. (It helps lower my blood pressure to treat Blackman as an ordinary Joe, and not as a lawyer or law prof or legal expert in any sense.)

[TwelveInchPianist]

I don't see a problem with it.

It was before Trump's motion, there's a legit reason for the call, and it's clearly within ethical rules.

Do you think many people would deny a former employee a reference with the President-Elect because it might look bad, even if it was clearly within the rules?

And refusing to take the call might look bad as well. If, say, Sotomayor refused Trump's call in similar circumstances, I'd assume that it was due to anti-Trump bias.

[TwelveInchPianist]

And if Sotomayor did take a call like this in similar circumstances, I don't think anybody would be complaining. It's the type of thing that seems like a problem only if you already think Alito's corrupt.

[santamonica811]

I tend to think you're correct about this. I'm not worried at all about the substance; just concerned about the appearance of bias...which is alleviated, once I have an explanation. (It's one of the reasons why I was so bothered by Justice Thomas and his corrupt acceptable of lavish gifts. I don't think anyone *really* believes that Thomas 'forgot' to report them. And a man with integrity would have reported them, even if there were no legal obligation to do so. Thomas didn't, and then forgot and didn't again. Etc etc etc.)

But that's not the case here. Here's my reaction:
1. "Hmmm...this looks kinda bad."
2. "Oh, this is the explanation? Seems feasible. And reasonable enough. And you (Trump and Alito) didn't try and deny it, or hide it, etc.. That adds to your credibility. Therefore..."
3. "Fine with me. Next issue. Let's move on."

[Stephen Lathrop]

You know why it is not a good explanation? There is no earthly reason the call could not have waited for a few days. Trump will not have any power to effect or affect any appointment until he takes the oath. The hurry-up is what gives the game away.

[Lee Moore]

Trump will be within a few days of making a motion to the Supreme Court, either in a personal or Presidential capacity, pretty much once a week for the next four years. There's no "quiet period."

Moreover the fact that Trump isn't formally taking office for another 11 days doesn't mean he can blow a few days here and a few days there waiting for the Lathrop decorum meter to subside.

[Malika the Maiz]

Isn’t the Court supposed to rule by the 10th? That wouldn’t be 11 days.

[David Nieporent]

Trump will be within a few days of making a motion to the Supreme Court, either in a personal or Presidential capacity, pretty much once a week for the next four years. There's no "quiet period."

As Scalia pointed out regarding his hunting trip with Cheney, a suit in one's capacity as an officeholder is entirely different than a suit involving someone personally.

[Dr. Ed 2]

Is Alito a former employer -- or former professor?

The answer is, of course, both -- but I have advocated for former students I've believed in. And what's not being said is what is the position? Solicitor General?

[David Nieporent]

As the OP points out, there's no prohibition on judges talking to litigants about unrelated matters.

And as my original comment points out, this isn't about a social conversation.

[TwelveInchPianist]

And contra your comments, it's not about Alito doing anyone a favor, either.

[TwelveInchPianist]

And social conversation would have been less defensible anyway. Alito could have said, look, Donnie, let's catch up when your criminal case is over.

But here, he'd have to screw over a former clerk with no good reason not to.

[David Nieporent]

You're right that a criminal defendant shouldn't be socializing with the judge hearing his case.

But here, he would not in fact have to screw over a former clerk. Speaking to Alito could add no information that any reasonable person would want to know.

[Bob from Ohio]

"Alito could add no information "

"The justice-clerk relationship is much much closer than that"

No info can be gained from talking to a close relationship, yup.

Your TDS is acute now. Must be January 20's approach.

[JoeFromtheBronx]

"with any luck, he will be replaced by a justice who understands and complies with the same ethical standards that we all deal with"

Good luck with that.

[Roger S]

We are about to have 4 years of people complaining about Trump's phone calls. Get used to it.

[Kleppe]

Trump is so awful we have to pretend ordinary anodyne actions are bad so we have something to criticize him for. Don't you get it?

[Malika the Maiz]

It’s more like Trump is a litigant in front of the Court at the same time he’s letting the judge know he’s thinking about hiring the judge’s guy.

[Michael P]

What bond of affection or dirty do you suppose Alito has towards this job candidate that makes the candidate "the judge's guy"? The reporting indicates that the candidate, not Alito, initiated the reference and pushed the candidacy.

And why did you assume the former clerk's gender?

[Michael P]

Affection or duty. Sigh.

[Malika the Maiz]

1. Alito used the possessive (“one of my former law clerks”).
2. His name.

[TwelveInchPianist]

So your comment could just have easily been, "It’s more like Trump is a litigant in front of the Court at the same time he’s letting the judge know he’s thinking about hiring one of the judge’s former law clerks."

[Malika the Maiz]

With “former law clerk” meaning someone he likely has a high level of attachment to.

[TwelveInchPianist]

You mean the usual level of attachment people have for former employees/colleagues?

If a former boss considers someone hiring you a personal favor, that's not a good sign. One would hope that the former boss thinks he's doing you and the next employer a favor.

[Malika the Maiz]

I’m not sure why you think this some kind of either/or that gets you somewhere. If someone thinks you’re great and is excited that an employer is going to give you an opportunity to show that then that’s something that could create appreciation in that someone. If someone considers hiring you a favor it may not speak well of you but that’s also neither here nor there as to whether they wouldn’t appreciate the favor.

[Michael P]

You're not even doing the legally disfavored piling of inference upon inference. You're piling unsupported speculation upon unsupported speculation.

[Malika the Maiz]

No, I’m pointing out that a cursory familiarity with human nature and professional workplace behavior makes it easy to see how this situation can reasonably give rise to the possibility of influence.

You’re trying to argue that it’s unreasonable because a judge could never be seen as being appreciative of a high political figure considering hiring their clerk.

[Michael P]

No, you are waving your arms and making gob-smackingly vague assertions in an effort to smear a Supreme Court justice.

I am, in fact, arguing nothing like you claim I am arguing. I am arguing that your theory requires some level of improper appreciation for a prospective position that rises to undue influence, or at least the appearance thereof, and you have not come remotely close to supporting that chain of suppositions. You are working way too hard to create "the appearance" by insisting that vague hypotheses apply strongly to this specific instance.

[Malika]

"I am, in fact, arguing nothing like you claim I am arguing."

Of course, that's why you've spent so much time trying to claim that people wouldn't feel any appreciation for someone hiring a mentoree upon their recommendation!

As far as not getting what someone is arguing, I'm not arguing Alito has been caught in some improper quid pro quo. That's not what professional standards to avoid conflicts of interests with government officials are always about. It's about taking steps to assure the reasonable appearance of impropriety might be afoot.

So, is it reasonable to think a mentor might find the hiring of a mentoree upon recommendation of the mentor as something valuable to the mentor? The answer, despite your protestations, to most people is, yes, of course.

Now, does the mentor in question have some power to decide an issue immediately in front of them involving the one doing the hiring? Here, yup.

[Michael P]

Malika continues to have no argument except manufactured outrage.

[David Nieporent]

You mean the usual level of attachment people have for former employees/colleagues?

No. The justice-clerk relationship is much much closer than that. (Do you remember the silly kerfuffle about Thomas's clerks' holiday party a few years ago?)

[Michael P]

You think "one of my former law clerks" indicates an unusual or improper level of attachment?

Is Malika being serious? Stupid? Seriously stupid?

[Malika the Maiz]

I didn’t say unusual or improper but quite likely a fairly high level of attachment? Quite likely. Lots of my former bosses feel a high level of attachment to, and willingness to advocate for, me, but I get your experience might be very different and this would be difficult for you to conceive.

[TwelveInchPianist]

Would they throw a case to get you hired? What kind of work did you do for them?

[Malika the Maiz]

I’m not sure how far any of them would go, but they’d likely be thankful and appreciative of those who ultimately hired me after their recommendation.

[TwelveInchPianist]

Weird. My former employers generally expect people who hire me after their recommendation to be thankful and appreciative of them.

[Malika the Maiz]

That shows an odd understanding of how highly professional mentorship type situations work. Many people feel quite invested in their mentorees and if someone were to “give them their big break” they quite likely would feel some appreciation for them. Of course the hope is that the mentoree’s performance will prove the recommending mentor’s vouch correct and the employer will then be thankful, but especially at the point of being given the initial opportunity it’s quite foreseeable that the recommending mentors will feel gratitude.

[Michael P]

"Many people feel quite invested in their mentorees and if someone were to 'give them their big break' they quite likely would feel some appreciation for them."

This is exactly why you should clarify your theory.

Do you have literature to quantify "many people" here, or are you projecting based on your personal experience, or are you just speculating in the absence of both objective and personal evidence? Do you think this means generally that federal judges and justices should not provide job references for former clerks, or is there some kind of special pleading in this case? Do you have any evidence to support that Alito has this kind of investment in this former clerk, or are you just hoping and wishing? Does Alito know what position is being considered here and whether it would be considered the former clerk's "big break"? Do you have anything to support your theory that this is "being given the initial opportunity", as opposed to those of us who know reference checks as one of the later stages of an opportunity? Do you even know what motivates mentors to "feel gratitude", or are you just throwing things against the wall in a vague hope that something will stick?

[Malika the Maiz]

Let’s start at the beginning, you don’t think many people feel an emotional investment in their mentorees and their success? Or do you think you need a study for someone to think that?

[Michael P]

OK, thanks for clarifying that your position is that of an abject moron who doesn't know the first thing about mentorship, employment supervision or professional references. I think we are done here.

[Malika the Maiz]

If you couldn’t answer that you should have just said so instead of all that!

[Michael P]

It's not my responsibility to walk you through the basics of how these things work. If you're so ignorant, you should refrain from commenting until you learn at least enough to be dangerous.

[David Nieporent]

Do you have any evidence to support that Alito has this kind of investment in this former clerk,

Aside from having an understanding of the justice-clerk relationship, the very fact of this conversation reflects that investment.

The guy didn't, after all, merely ask Alito to write him a recommendation letter. This involved a personal phone call.

[TwelveInchPianist]

"The guy didn't, after all, merely ask Alito to write him a recommendation letter. This involved a personal phone call."

I don't know about the law business, but in my line of work calls like this happen all the time.

You're saying justices don't routinely take calls from prospective employers for their former clerks? I would expect otherwise.

And to be clear, are you saying that Justices have in interest in their former clerk's employment that rises to the level of a conflict? I would find that surprising.

[Malika]

"It's not my responsibility to walk you through the basics of how these things work."

That's good for you, because you don't seem to know how.

[David Nieporent]

You're saying justices don't routinely take calls from prospective employers for their former clerks? I would expect otherwise.

Yes, that's exactly what I'm saying. People who clerk at the Supreme Court are already set in their legal careers; they're not cold calling employers after they leave their clerkships.

And the claims here are particularly ridiculous. Levi graduated from law school in 2010. He clerked for Alito in 2011-2012. Since then, in the last 13 years, he has worked in BigLaw. He has worked in the Senate — for Mike Lee, one of Trump's biggest bootlickers. And he has worked for Trump himself.

The notion that Sam Alito has anything useful to say about the guy at this point is ludicrous, and the claim that Trump was just calling Alito to find out about the guy is mendacious. The only thing Trump would want to know about the guy that isn't obvious from his resume is whether he's politically reliable — in other words, whether he'll be personally loyal to Trump. And Alito would not be a legitimate person to ask that question. (Mike Lee, on the other hand, might be.)

And to be clear, are you saying that Justices have in interest in their former clerk's employment that rises to the level of a conflict?

I am saying — yet again — that the clerk-justice/judge relationship is incredibly close. Justices have no financial interest in their clerks' future success (I hope!!!), but they have a strong personal interest in it.

[Michael P]

The only difficulty in conceiving something here is that you have nothing more than arm-waving here.

Every one* of my former bosses would love to have me work for them again -- that's essentially how I got the last two of my four jobs -- and would give me glowing references. Somebody else hiring me would not be any kind of favor to them.

* Except one, but that's only because he passed away. He hired me at jobs #1 and #3. My boss at job #2 got me hired at job #4 when I asked him to be a reference.

[Malika the Maiz]

Lol, I love how your initial post was “you’ve got nothing but arm-waving” but then you felt the need to add a couple paragraphs because it dawned on you that you’re the one arm-waving.

“Somebody else hiring me would not be any kind of favor to them.”

Do you have any concept of how, say, mentorships might work? Or networks for that matter. In the professional world there’s often a lot of attachment and pride in a student, apprentice or mentoree and someone giving them an important job upon your recommendation isn’t a favor so much as it is something of great value to you. “Thanks for giving Will a shot, Bob, you won’t be disappointed. Now, see you Saturday on the links!”

[TwelveInchPianist]

Maybe you should clarify your position. Do you think a litigant potentially hiring a judge's former law clerk creates an improper level of conflict for the judge?

[Malika the Maiz]

It certainly can give rise to a reasonable inference of a possible influence.

[TwelveInchPianist]

"possible influence?" OK.

Does this apply to any litigant who has hired one of the judge's former clerks, or just Trump?

[Malika the Maiz]

I’d say it’s a general point.

[Michael P]

So a judge should recuse from any case where a former clerk has been hired by, say, the federal government if the United States is a party to the case?

[Malika the Maiz]

I thought you were done here?

[Michael P]

Lol, I like how you continue to have no point at all. My added paragraphs were to pre-rebut exactly the kind of stupid claims you are now making.

[Malika the Maiz]

Sure you don’t want add some more to this one? I’ll grant your additions don’t help you much!

[Bob from Ohio]

"judge’s guy."

Sam has had dozens of clerks in 20+ years. Justices have some regard for past clerks but you have no evidence that this former clerk is close to him. And no, Levi having the phone number is not evidence of this.

[Malika]

It's a good thing my position doesn't rest on the clerk being particularly close then! A rule to avoid the appearance of impropriety cannot be made at the level of "yes, he was your nephew, but was he close to this nephew?"

[Bob from Ohio]

You called him his "guy".

[Kazinski]

Its Trump rules time again.

But I am not complaining, Its also Trump rules that a candidate could get convicted of a felony for paying off a pornstar and still win the election.

It was 4 years of Anti-Trump rules 2016-22 that normalized the pro-Trump rules 2022-2028.

Wonderful game.

[Roger S]

Trump is not convicted until sentenced. That could happen Friday.

[Martinned2]

For the record, justices talking to the president about the president potentially hiring or nominating one of their former clerks seems fine to me, although a prudent justice would arrange to have a witness present.

Josh's post, on the other hand, is another sad attempt at fighting strawmen to pre-emptively argue that Trump is the most ethical president since Lincoln.

[Dr. Ed 2]

Is this the same Lincoln who suspended the writ of habeas corpus in Maryland? Who threw much of the MD legislature in jail? Etc.?

[Frank Drackman]

and only freed the Slaves in the parts of the South the North hadn't conquered yet.

[Malika]

Lincoln freed the slaves he thought he had the power to do so (and even that was contested). Then he later pushed through efforts to free them all.

Of course, anyone who has read Frank's bigoted comments here knows this is entirely in bad faith.

[Malika the Maiz]

Maybe they just talked about tastes in flags?

[Dr. Ed 2]

Evidence of how morally bankrupt , the feminists are is the fact that they aren't defending him.

I think it is clear that the flag issue is his wife, and he is respecting her, the way that men are supposed to respect their wives. Respecting a woman does not mean that she is right, or that you inherently agree with her, and definitely doesn't mean that she is being politically correct. Instead it is supporting her doing something you don't agree with because you love her.

And that is what Alito was trying to say in a legalistic manner when he said that she had an equity right as a co-owner of the property to display flags on it.

And if the FemiNazis weren't so morally bankrupt, they'd realize that and support him on it.

[Malika the Maiz]

That’s a two-sided morally bankrupt sword.

[David Nieporent]

I think it is clear that the flag issue is his wife,

That is not in fact clear. What is clear is that you don't understand feminism. (Also, who are "the feminists"?)

[Frank Drackman]

You're Man-splaining, even if the "Man" part is questionable.

[ObviouslyNotSpam]

Alito generously threw his wife under the bus in "Flaggate". My opinion is that he was, at least, probably lying about what he knew and when he knew it.

[Estragon]

his wife

Martha-Ann was spittin mad!

[Orin S. Kerr]

Does Trump make a lot of former-employer reference checks himself?

[Lee Moore]

I certainly hope so. Relying on recommendations from establishment Republicans was hardly a winning strategy last time.

[Dr. Ed 2]

There's also protocol -- you aren't going to have an intern asking tough questions of a SCOTUS justice...

[Michael P]

I expect it depends on the role that Trump is hiring for and who the reference is. If someone applying to work for me listed a Supreme Court justice as a reference, I would get my boss's boss's boss (or as high up the chain as I could go) to make the call, out of respect for that reference and to increase the likelihood of getting a quality answer rather than no answer or a brush-off. Similarly, a position one step down from the Cabinet would be more likely to warrant a call from the President-Elect than the junior assistant undersecretary for dogcatchers.

[ObviouslyNotSpam]

William Levi was Bill Barr's Chief of Staff for a year, just four years ago. I suppose it's unlikely Trump would have called Barr...

[Bob from Ohio]

"unlikely Trump would have called Barr"

Yes it is, Barr is on Trump's naughty list.

[Kazinski]

Well how sensitive is the position?

Trump felt burned last time by White House Counsels he didn't think were doing their utmost for his interests, Alito's personal perspective would be valuable.

He may also have an ulterior motive, like finding out just how long Alito intends to serve, they may not want to disclose that, but I don't think that conversation is improper.

[David Nieporent]

Alito's personal perspective would be valuable.

1) Again: the guy hasn't worked for Alito in 13 years. He worked for Alito pretty much right out of law school. Since then, he's got a 13 year track record of working for other employers. What would Alito's perspective add that any of the people who worked with the guy in the last 13 years not?
2) I discussed that possibility earlier in this thread: that Trump's goal was to find out if the guy were "reliable" — that is, if he would be personally loyal to Trump. But that would be an entirely inappropriate thing for Alito to opine on in this context.
3) Even if that were the reason to talk to past employers, why would Trump be personally doing it? Why wouldn't Trump's chief of staff, or incoming white house counsel, or the like, be doing it?

[Commenter_XY]

Happy New Year Professor Kerr....looking forward to reading your takes on 4A cases this year. As a layman, I appreciate your writings and posts on 4A.

[tuphat]

tldr for Josh - "ABC shouldn't force Alito to acknowledge call actually happened because [reasons.]"

[Michael P]

Do you often make up ideas and attribute them to others in quotes? Do you think someone who provides a professional reference for a candidate should share that reference with the media?

[Malika the Maiz]

Lol, “he made up quotes!” In a tldr!

[Michael P]

Oh, look, another person who doesn't understand what quotation marks signify.

[Malika the Maiz]

Keep digging!

[LawTalkingGuy]

Quotation marks can signify other things in addition to direct attribution. For instance scare quotes around a single word or phrase for emphasis, often in a sarcastic or ironic sense. Here, given that the phrase in quotes is below the original post (where it’s easily checkable) and preceded by a TL;DR (an indicator that the author is about to give a sarcastic summary of the above) it’s pretty evident it’s not meant to be a direct attribution.

The online right’s struggle with figurative language continues.

[Michael P]

Quotation marks are not obligatory after TL;DR, much less tldr. Abridging text does not entitle one to put quotes around the abridged version, but thanks for showing that you're still the kind of partisan shill who spends a lot of words to pretend otherwise.

[LawTalkingGuy]

No. I would do this to a liberal who doesn’t understand figurative language too. They’re just much less likely to be belligerently stupid about it

[Michael P]

You are coming in a close second to Malika on belligerently stupid here.

[LawTalkingGuy]

If your measure of stupidity includes the ability to understand figurative use of quotations then I’ll take that as a compliment.

[Michael P]

Free lesson in the language of formal logic: "if X then Y" is said to be vacuously true when X is false.

[LawTalkingGuy]

Yes yes, we’re all impressed by the time you got a B+ in intro to formal logic at Gudger College.

[Malika the Maiz]

Lol! Tldr “This outrage to the clear rules of internet slang shall not pass!

[David Nieporent]

Shorter Michael P: "I don't understand Internet conventions."

[Jason Cavanaugh]

OMG DID HE REALLY SAY THAT!

[apedad]

Fox News has the same story and Fox even interviewed the Justice directly.

But go ahead and point out ABC.

https://www.msn.com/en-us/politics/government/justice-alito-says-he-spoke-with-trump-about-former-clerk-before-hush-money-filing-to-high-court/ar-BB1r8QmR?ocid=BingNewsSerp

[tuphat]

Oh, well, if Fox ran it, that's OK.

[LawTalkingGuy]

Josh’s fourth point is worth breaking down a bit
because it demonstrates that he operates in a totally alien world from the way the rest of us experience legal practice.

“The problem with ex parte communications is that a judge may disclose some information to only one party.”

This is true, but also not the only problem with ex parte communications. It’s also about one side giving information to a judge to influence the decision. Or just gain a more favorable impression. And to avoid the appearance of impropriety where nothing can be proved one way or the other.

I’m actually curious as to whether Alito disclosed this conversation to the rest of the Court and the state of New York (or Trump’s attorneys). Because that’s what should have happened. I can’t think of any judge who wouldn’t immediately disclose this conversation to the parties.

“But no cannon of ethics prevents a judge from having unrelated communications with someone who has an interest in the litigation. Judges are not hermits. Trust me, this happens all the time. And I think it often occurs in the context of job recommendations. I can prove it.”

Okay. But how often does this happen in practice in the real world and not the rather circumscribed world of political and activist litigation Josh is used to? Where the parties with interests aren’t politicians and elite lawyers arguing for think tanks and advocacy orgs composed of elite lawyers? Even in elite local circles this 1) likely wouldn’t happen, 2) would be a big deal if it did. You think a local lawyer with a DUI case pending is going to have a convo with the judge or judges on his case about hiring their clerks? And what do you think would be the result if he tried? And then let’s set aside the vast majority of people where that simply isn’t an option: that the judge would just take a call from a party that came to them.

See in the real world if a client wanted to talk to a judge presiding over their case, even about something unrelated, the attorney would tell them not to do that. If they found out the client did that on their own against advice or without asking first, the attorney would be making a less than pleasant phone call to the client.

But I highly doubt that Trump’s attorneys felt that way about this call. Why they wouldn’t have the normal freak-out is left as an exercise to the reader.

[Dan Schiavetta]

+1

[David Nieporent]

Even in elite local circles this 1) likely wouldn’t happen, 2) would be a big deal if it did. You think a local lawyer with a DUI case pending is going to have a convo with the judge or judges on his case about hiring their clerks?

Precisely — and I've boldfaced the key part. This isn't a conversation about the Mets' latest signings or the latest season of the Mandalorian. It was not a social conversation; it was about a business arrangement.

[LawTalkingGuy]

If professional responsibility professors use this fact pattern as an exam hypo and replace “Justice Alito” with “judge” and “Former/future president” with “criminal defendant” the answers would be way different than Josh’s, even from the FedSoc students!

[JoeFromtheBronx]

Okay. He's a Philly fan. That's a bit mean.

[David Nieporent]

I'm not going to deny under oath that I was smirking when I wrote that.

[Swede425]

I'm very concerned about this.
VERY concerned.
And I hope it stays in the news cycle for at least 3 more months.
And I hope Republicans use this as an excuse to pack the Supreme Court.
We simply can't have whatever is happening here happen anymore!

[Frank Drackman]

Did the Clerk leave a young woman to Asphyxiate (not drowned, there's a difference) like a certain Dead Kennedy??
If not, he's already better than a certain Dead Senator from Tax-a-Chusetts, who Jimmuh Cartuh beat worse in the 1980 DemoKKKrat primary than Ike beat Tina.
Remember when Fat Face was asked why he was running for President and turned into Porky Pig?
"Badeabadeabadea- That's all Folks!"
Unfortunately it took J-Hay another 29 years to throw the Glioma Stick at him (I get it, J-Hay's a busy Surpreme Being)

Frank

[Malika the Maiz]

This has been Remember the 70’s brought to you by the letter Q, the John Birch Society and The society for Alternative English
writing!

[Frank Drackman]

Mary Joe Kopeckney Asphyxiated (not drowned, there's a difference) July 1969 (and even if you go by that bogus "The 60's began November 22, 1963 (or when the Beetles went on Ed Sullivan, or the Marines landed at Danang) it certainly wasn't the 70's

Frank

[Longtobefree]

Just for the record, ABC is not a reliable source.

[apedad]

Fox News reported the story too and even interviewed the Justice.

[LawTalkingGuy]

Okay but they have a statement from Alito? So their reporting was correct.

[tuphat]

Do you think Alito is a reliable source?

[LawTalkingGuy]

Well…

[Frank Drackman]

To the Contrary, Jonathan Karl reliably is full of Shit.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

I felt that way about how some 'reacted' to \https://www.thenation.com/article/society/james-ho-next-clarence-thomas/\

James Ho Wants to Be the Next Clarence Thomas
The Fifth Circuit judge is a far-right extremist and provocateur—and he’s angling for a seat on the Supreme Court.

Have you ever known a moral sensible educated person that read THE NATION

[David Nieporent]

Have you ever known a moral sensible educated person that read THE NATION

Sure; it's not like it's Breitbart or the Federalist.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Notice, readers, the cowardice (transparent cowardice ) of not just saying "I READ IT" Tosser

[Malika]

He insulted you (to great effect) instead.

[ObviouslyNotSpam]

I used to regularly read The Nation in my university's library. I wanted to know what the "other side" was thinking. I sometimes dip into the fringe/mainstream rightwing press these days for the same reason.

Are you telling us that you rely on the sources you already agree with to keep you informed about the opposition? That's what you would call "sensible"?

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

No, and you can drop the foregone verdict that putting "sensible" in quotes says about you.

I read widely ,very widely. I get most of my informtation on what I care about from groups formed for that purpose. OF COURSE.
What's sensible about allowing any news source to cull things before you even know about them. Tosser

[ObviouslyNotSpam]

QED

[David Nieporent]

I used to regularly read The Nation in my university's library. I wanted to know what the "other side" was thinking. I sometimes dip into the fringe/mainstream rightwing press these days for the same reason.

Yes; I have always tried to read (reputable, reliable) stuff from "the other side." Back in my liberal days in college I used to read National Review. When I moved towards libertarianism I would read things like the Nation. (Now, fringe stuff like Jacobin (on the left) or The Federalist (on the right), I only hate read, not to actually learn anything.)

[bratschewurst]

I remember when the Right had a complete meltdown over an impromptu and unscheduled meeting between Bill Clinton and the serving Attorney General on an airport ramp. Nice to know that Professor Blackman agrees that such a meeting would be totally unproblematic. Also nice to know about the long career of Chief Justice Abe Fortas.

[Bob from Ohio]

"airport ramp"

I believe it was inside the plane.

Nice to know that you agree that the Trump call is totally unproblematic.

[SRG2]

If memory serves, they also imagined that a specific conversation took place, with no evidence, and then proceeded to get apoplectic over the contents of that convo.

[JoeFromtheBronx]

If only the justices agreed to a binding ethics arraignment akin to what Kagan and others have supported.

The matter could have been decided by a third party & if it all was so clear, the process can work out to Alito's benefit.

OTOH, if some commentators are right, another rule might be determined to be appropriate and Alito can say "my bad, I'll do better next time & stay out of the deciding of the specific pending Trump case" (which probably wouldn't change the result).

[PeterTx52]

Kagan and the other liberal justices should lead by example considering their problems with ethical issues

[PeterTx52]

Congresswoman Jasmine Crockett and Congressman Hank Johnson
"Hours after a 1-on-1 phone call with Justice Alito, Trump submitted a request for an emergency stay on his criminal hush money sentencing hearing. Alito claims it was a reference check for his SCOTUS law clerk wanting a job with Trump . . . but the timing couldn't be shadier.
As Co-Chairs of the Court Reform Now Task Force, Congressman Hank Johnson and I demand Justice Alito recuse himself from any decisions in the case of Trump v. New York."
Crockett has posted the letter on her Facebook page
https://www.facebook.com/share/p/17uEzo4nhB/

[David Nieporent]

Update: Mollie Hemingway explains at The Federalist what should be obvious: the ethical guidelines expressly allow judges to receive calls from appointing authorities in the executive branch for references:

This fucking guy. Once again: the issue is not a call for a recommendation. The issue is a call from a criminal defendant right before the judge is about to rule on the criminal defendant's case.

[JoeFromtheBronx]

So, SCOTUS by a bare 5-4 per curiam allowed the Trump sentencing to go on with a caveat that implies even that was a close question. Small favors but sheesh.