Senate Judiciary Chairman Dick Durbin and all his fellow Democrats on the panel wrote to Chief Justice John Roberts last month, asking that Alito recuse himself from the tax case because one of the attorneys involved is David Rivkin, who conducted Alito’s recent interviews with James Taranto, the newspaper’s editorial page editor.
Durbin and his colleagues said it created “an appearance of impropriety” for Alito to participate in the tax case, Moore v. United Statesafter using the interviews with Rivkin to “express his personal grievances”.
But Alito, appointed by President George W. Bush, said requiring judges to recuse themselves because they granted private interviews was impractical and that the senators’ arguments were “ill-founded”.
“When Mr. Rivkin participated in the interviews and co-wrote the articles, he did so as a journalist and not as a lawyer,” Alito wrote, denying that he and the lawyer discussed “any issue in this case, directly or indirectly”.
Rivkin declined to comment on the judge’s statement on Friday.
Alito also pointed to interviews that other judges have given to various news outlets in recent years and noted that those judges have not recused themselves in cases involving those news outlets. However, none of these cases appear to involve the individual interviewer, although Alito also noted some cases in which lawyers argued cases in the High Court and interviewed or wrote books with judges.
“We often come across cases where one of the lawyers has spoken favorably or unfavorably about our work or our character,” Alito added. “If we recused ourselves in such cases, we would regularly have less than a full seat and the work of the Court would be significantly disrupted and distorted. »
Alito’s pointed rebuttal to the recusal request comes as ethical concerns swirl around the court, along with calls for judges to adopt a formal code of conduct and a mechanism to enforce it. Some Democratic lawmakers have sought to pass legislation requiring the court to create a code of ethics. The Senate Judiciary Committee introduced such a bill in July, although it appears unlikely to pass.
In an interview with The Wall Street Journal published in July, Alito said such legislation was unconstitutional because, he said, Congress lacked the power to regulate the court. At least one of his colleagues, Judge Elena Kagan, publicly disagreed.
The Senate Democrats’ letter to Roberts also asked Alito to recuse himself from any case related to the Supreme Court’s ethical requirements. Alito’s statement on Friday did not address that aspect of the letter.
Alito’s forceful response follows other recent comments in which he lamented what he sees as a failure by the legal establishment to push back against recent attacks on the integrity of the court.
“At one point I thought to myself: nobody else is going to do this, so I have to defend myself,” he told the Journal in July.
Although parties occasionally file motions requesting the disqualification of a judge, it is rare for strangers uninvolved in a case to make such a petition and even rarer for a judge to publicly respond to it.