Tipsheet

'Undermine Credibility and Legitimacy': Legal Expert Shares Why Durbin's Still Calling on Alito to Recuse

Rebecca Downs
Rebecca Downs  |  June 04, 2024 7:15 PM

Congress returned from its recess on Monday, and that meant Senate Majority Whip Dick Durbin (D-IL), who also serves as the chairman of the Senate Judiciary Committee, wasted no time in again calling on Justice Samuel Alito to recuse himself from U.S. Supreme Court decisions having to do with the 2020 election, specifically Trump v. United States and Fischer v. United States. Alito already made clear last week that he would do no such thing. As it turns out, though, these attacks are here to stay, as Democrats work to "undermine the credibility and legitimacy of the Court."

Speaking for over 10 minutes, Durbin began by ranting and raving about one of the Democrats' favorite talking points: the events of January 6, 2021. He specifically referenced the upside down American flag and historical "Appeal to Heaven" flags seen at the Capitol that day. 

The Alitos have faced hit job reports from The New York Times for such flags appearing on their property, with the former appearing years ago, and the latter appearing on their summer property almost a year ago. The "Appeal to Heaven" flag has only just recently been considered controversial, and was even seen outside the City Hall in San Francisco until late last month.

"While the events of January 6 were hard to imagine, reports that the same battle flags flew outside Supreme Court Justice Samuel Alito’s homes were nearly as shocking," Durbin claimed from the Senate floor, going for quite the hyperbolic tone. "While these flags may have once held other meanings, in the year 2021, they were closely associated with election deniers and extreme right-wing politicians. They are in fact the battle flags of Trump’s MAGA movement."

Durbin continued his intense attacks on Alito from there. "The flying of these flags marks a new disturbing chapter in the Supreme Court’s ongoing ethical crisis. It suggests that Justice Alito has not only chosen sides in an ongoing political dispute, but he’s also announced his allegiance in pending legal disputes," he also claimed.

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"Displaying the upside-down American flag and 'Appeal to Heaven' flag creates the appearance that Justice Alito has already aligned himself with the 'Stop the Steal' campaign, Durbin also said. "He cannot credibly claim to be an umpire calling balls and strikes in these cases. He has donned the jersey of his favorite team. That’s why I called on Justice Alito to recuse himself and why I urged Chief Justice Roberts to finally step up and take the steps necessary to ensure that Justice Alito does not sit on those cases and rather that he recuses himself."

Again, Alito already dismissed such demands from Durbin, but the senator remains relentless. "We cannot afford further erosion of public confidence in our courts. Our faith in the impartiality of judges is essential to the functioning of our legal system and our democratic form of government," he went on to complain. It is Durbin and his fellow Democrats who have been complaining about the Court. 

Durbin concluded by once more pushing his legislation that seeks to impose ethics and recusal requirements on the justices via the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act. 

In speaking with Townhall, Curt Levey, a constitutional law attorney and the president of the Committee for Justice highlighted how the Court will be handing down some major decisions this month as the term comes to a close, and so we can expect the attacks to continue. This includes a decision on former and potentially future President Donald Trump's immunity claims, one of the cases Durbin referenced in his post.

"With some huge Supreme Court decisions due out this month, some of which Democrats are certain to not be happy with, you can bet that they will do everything in their power to try to question the integrity and legitimacy of the court between now and over the next month," Levey explained. "And the fact that Alito has given them a firm 'no' is not going to dissuade them 'cause the goal here is not really to make Alito recuse himself, but undermine the credibility and legitimacy of the Court," he also shared.

On Monday, the Senate Judiciary Committee Democrats' X account also three times about Alito and the Court within minutes of each other. Further, the pinned post is still from July 20, 2023, when such a bill imposing ethics advanced.


Durbin and Sen. Sheldon Whitehouse (D-RI), who is also a member of the Judiciary Committee and chairs a subcommittee, have also sought to involve Chief Justice John Roberts in an attempt to seek to police him in controlling Alito, as Durbin mentioned in his remarks above. Roberts has also refused to go along with such partisan demands. 

As Alito, conservative justices, and even the Court as a whole have been the subject of an onslaught of attacks, other legal experts also warn about other concerns. In including screenshots of The Washington Post's Jennifer Rubin screeching about how to "respond to" Alito, the Judicial Crisis Network's Carrie Severino issued a stark warning. 

"Jennifer Rubin says if Democrats win the White House and majorities in the House and Senate, they will remove the filibuster, impeach Justice Alito, and pack the Supreme Court," Severino highlighting, also warning that the "stakes of the 2024 election could not be higher."

"Should Democrats win the White House and majorities in the House and Senate, no matter how narrow, the entire panoply of reforms and responses should be on the table. Those could include Alito’s impeachment (especially if he snubs a subpoena), a mandatory ethics code, Supreme Court term limits and court expansion. (If need be, Democrats would need to adjust the too-long abused filibuster to attend to the job of fixing a disgraced court.)," Rubin's column indeed read in part.

Severino has previously warned about how the Court and the filibuster are at stake when it comes to the upcoming 2024 election.