WASHINGTON – Justice Samuel Alito on Friday rejected demands from Senate Democrats that he step aside from an upcoming Supreme Court case because of his interactions with one of the lawyers, in a fresh demonstration of tensions over ethical issues.
Alito attached an unusual statement to an otherwise routine list of orders from the court. “There is no valid reason for my recusal in this case,” Alito wrote in a four-page statement.
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Democrats on the Senate Judiciary Committee have been highly critical of Alito and the rest of the court for failing to adopt an ethics code, following reports of undisclosed paid trips taken by Justice Clarence Thomas and, on one occasion, by Alito. The committee approved an ethics code for the court on a party-line vote, though it is unlikely to become law.
Last month, Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and other Democrats on the committee sent a letter to Chief Justice John Roberts calling on Alito to not participate in a tax case that will be argued in the late fall.
The Democrats complained that Alito himself had cast doubt on his ability to judge the case fairly because he sat for four hours of Wall Street Journal opinion page interviews with an editor at the newspaper and David Rivkin, one of the lawyers for the couple suing over a tax bill. Rivkin also represents Leonard Leo, the onetime leader of the conservative legal group The Federalist Society, in his dealings with the Senate Democrats, who want details of Leo’s involvement with the justices. Leo helped arrange a private trip Alito took to Alaska in 2008.
In the second of two articles the interviews produced, Alito said Congress lacked the authority to impose a code of ethics on the Supreme Court.
Durbin said in a statement that Alito “surprises no one by sitting on a case involving a lawyer who honored him with a puff piece in the Wall Street Journal. Why do these Justices continue to take a wrecking ball to the reputation of the highest court in the land?”
The court should be taking steps to stop the erosion of public trust, Durbin said. He said Alito's statement is additional evidence that Congress should force an ethics code on the nation's highest court, the only federal judges without one.
A day earlier, Justice Brett Kavanaugh said he is hopeful, without offering specifics, that the court will soon take “concrete steps” to address ethical concerns.
Justices typically do not respond to calls for their recusals, except in the rare instances in which they are made by parties to the case. But Alito said he was responding because of the attention the issue already has received.
He noted that many of his former and current colleagues have given interviews to reporters and then taken part in cases involving the reporters' media outlets.
Describing the Democrats' argument as “unsound,” Alito went on to write, “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.”