Donald Trump– now a convicted felon–will undoubtedly still get millions of votes. (Hopefully, not enough to win back the Presidency.) And then, there’s the Supreme Court, where Clarence Thomas and Samuel Alito– both manifestly unfit to serve on any court, let alone the highest court– thumb their noses at their critics.
Let’s talk about Alito.
The New Republic recently reminded us of the multiple bases for original opposition to Alito’s nomination. There was the legal memo he’d authored in 1985 articulating his opposition to legal abortion–contrasted with his assurances to Senator Ted Kennedy that he would never vote to overturn Roe; his membership in Concerned Alumni of Princeton, an organization that opposed increasing admission of women and racial minorities; and later, his refusal to recuse himself in two cases involving companies in which he had financial interest, even after he pledged to do so.
Kennedy gave a thunderous address on behalf of the people that the “liberal coalition” aimed to represent, warning on the Senate floor of the dangers of Alito’s extreme ideology: “If you are concerned and you want a justice that’s going to stand for the working men and women in this country—it’s not going to be Judge Alito. If you are concerned about women’s privacy rights, about the opportunity for women to gain fair employment in America—it’s not Judge Alito. If you care about the disabled … the Disability Act that we have passed to bring all of the disabled into our society, if you are looking for someone that is going to be a friend of the disabled—it’s not going to be Judge Alito.
Despite ample evidence of his dishonesty and rigid ideology, Alito was confirmed, and he has proved to be every bit as unethical and reactionary as Kennedy warned.
In the wake of the recent flag controversy–all of which this self-appointed arbiter of righteousness gallantly blames on his wife and most of which he has lied about–Alito is refusing demands that he recuse himself from cases involving January 6th and Trump.
As Robert Hubbell recently pointed out, the argument for recusal is painfully obvious. If Alito’s wife had flown a flag with a Swastika over their house, could Alito credibly claim that he had asked his wife to remove the flag but that she had refused because she “liked flags?” Could he credibly claim he didn’t understand the antisemitic meaning of a Nazi flag, and that there was thus no reason to recuse himself from a pending case about antisemitic speech?
Of course not.
Despite Alito’s breathtaking arrogance and dishonesty, the decision to recuse or not is not his to make. As Congressman Jamie Raskin has written in a New York Times op-ed, a constitutional provision and judicial precedents require both Alito and Thomas to recuse in these matters.
The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.
This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command…
Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line….
Chief Justice Roberts assured America that “Judges are like umpires.”
But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players.
Alito and Thomas are a disgrace to the bench. They should be impeached. That undoubtedly won’t happen unless the Democrats win a trifecta in November.