In response to Durbin’s empty words, constitutional
scholar Laurence Tribe declared that
the issue was no longer “just about the insurrection-abetting Sam Alito, [but]
about the AWOL Senator Durbin.” Tribe added, “He has no excuse for not holding
hearings about Alito now.”
What more need Alito do
before Durbin gets off the stick?
Passivity in the face of
Supreme Court corruption is unacceptable.
May 26, 2024 at 7:45 a.m.
EDT
One wonders what more Supreme Court Justice Samuel A. Alito
Jr. need do to defile the court’s reputation before Senate Judiciary Committee
Chairman Sen. Dick Durbin (D-Ill.) will do something more than issue a terse
tweet or letter.
After the New York Times reported on an upside-down flag identified
with the Jan. 6 insurrectionists flying over Alito’s Virginia home in the days
after Jan. 6, Durbin responded that he didn’t have “anything planned” in
response. No hearing? No bill ready to go? Nope.
“I think [Alito’s] explained his situation. The American
public understand what he did,” Durbin proclaimed, as if
Alito’s excuses were the definitive explanation for a gross breach of judicial
ethics. “But I don’t think there’s much to be gained with a hearing at this
point. I think he should recuse himself from cases involving Trump and his
administration.”
And if Alito doesn’t recuse, Durbin cannot find any
“recourse other than impeachment, and we’re not at that point at all.” That
weak-kneed response would not be Durbin’s worst on Alito this week.
When a second flag was
discovered flying, this time over Alito’s New Jersey home, the
Times reported that the “Appeal to Heaven” flag in question was also “carried
by rioters at the Capitol on Jan. 6, 2021” and “is now a symbol of support for
former President Donald J. Trump, for a religious strand of the ‘Stop the
Steal’ campaign and for a push to remake American government in Christian
terms.” And this symbol of Christian nationalism was aloft Alito’s house in
2023.
With a second flag story, Durbin got huffy
on social media. “This incident is yet another example of apparent ethical
misconduct by a sitting justice, and it adds to the Court’s ongoing ethical
crisis,” he tweeted. “Justice
Alito must recuse himself immediately from cases related to the 2020 election
and the January 6th insurrection.”
In response to Durbin’s empty words, constitutional
scholar Laurence Tribe declared that
the issue was no longer “just about the insurrection-abetting Sam Alito, [but]
about the AWOL Senator Durbin.” Tribe added, “He has no excuse for not holding
hearings about Alito now.”
After all, Alito cannot very well blame his wife or another
rude neighbor for this violation of the principle of judicial impartiality. The
second flag not only sheds doubt on the veracity of the first round of excuses;
it suggest he harbors an affinity for an antidemocratic group that defines the
United States as a White Christian country, repudiates the division between law
and Christian dogma and views the United States as under siege from secular
forces. At the very least it suggest the appearance of such
partiality. That is a gigantic problem for a justice who is required by
statute to be and appear impartial. On issues involving the
establishment of religion, gay rights and abortion, litigants opposing the
Christian nationalist viewpoint should not have confidence they are dealing
with a fair and impartial court.
Durbin inadvertently revealed in
a statement just how derelict he has been:
The Senate Judiciary Committee has been investigating the
ethical crisis at the Court for more than a year, and that investigation
continues. And we remain focused on ensuring the Supreme Court adopts an
enforceable code of conduct, which we can do by passing the Supreme Court
Ethics, Recusal, and Transparency Act. More than a year?! (Well, at least we
know he has remained “focused” on ethics reform.)
Alito’s misconduct also brings Chief Justice John G.
Roberts Jr., who heads an entire branch of government, to an inflection point.
If he does nothing, Roberts is complicit in the destruction of the court’s
reputation. Such spinelessness might even snatch from Roger B. Taney, the
author of the majority opinion in Dred Scott, the title
of “worst chief justice ever.”
In one sign the pressure on Durbin is building, he and
Judiciary Committee member Sen. Sheldon Whitehouse (D-R.I.) released a letter to Roberts
imploring him to make certain that Alito recuses himself “in any cases related
to the 2020 presidential election and January 6th attack on the Capitol,
including the question of former President Trump’s immunity from prosecution.”
They requested a meeting with Roberts “as soon as possible.” They continued,
“Until the Court and the Judicial Conference take meaningful action to address
this ongoing ethical crisis, we will continue our efforts to enact legislation
to resolve this crisis.” Though Roberts is unlikely to agree, a refusal might
then spur Durbin into taking meaningful action.
To be blunt, Durbin’s oath of office to protect the
Constitution demands he do something. And Alito’s grotesque
malfeasance tests not only Durbin, but also Senate Majority Leader Charles E.
Schumer (D-N.Y.). His credibility and fidelity to his oath
remain in question unless he can push Durbin to take real action.
Without hearings, no short-term response (e.g. passage of
ethics reform, investigation of any grounds for impeachment) or medium-term fix
(e.g. elevating the Supreme Court as a voting issue) to Alito’s bias — and his
affinity for an anti-constitutional movement that his oath of office obliges
him to oppose — can be attained.
The long-term imperative must be to educate the public
about the extent to which the court has been compromised. Only then can
democracy defenders build consensus for serious reform such as term limits or
the appointment of additional judges to rebalance the court and restore its
stature. That process should begin now.
Furthermore, when a future court (soon, we hope) reexamines
some of the era’s most reckless, precedent-wrecking and
historically cherry-picked cases,
the questionable legality of justices sitting on cases in violation of legal
recusal requirements (28 U.S.C. §455) should
be a valid consideration in determining the opinions’ precedential value. Put
differently, overtly ideological, biased judges may have muscled through
radical opinions, but that does not mean we should take the tainted
pronouncements of robed partisans as the definitive word on controversial
topics.
Alito’s misconduct, if unaddressed, would make the 2024
election a referendum on the court. Barring a sufficient response from Alito
and Roberts, voters will be left to decide how to rehabilitate the court, rid
it of the stench of scandal and insulate it from MAGA extremists. Democrats
must be prepared to offer solutions.
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