Ex-Watergate counsel says Alito must recuse or else he’ll 'undermine' SCOTUS’ legitimacy

13 June 2024

Justice Samuel Alito, appointed by President George W. Bush in 2006, has been serving on the U.S. Supreme Court for 18 years. And he has been especially controversial during the Biden era, from writing the majority opinion in Dobbs v. Jackson Women's Health Organization (which overturned Roe v. Wade) to displaying two flags that have been adopted as symbols of efforts to overturn the United States' 2020 presidential election.

Alito's critics have been calling for him to recuse himself from cases that are relevant to the January 6, 2021 attack on the U.S. Capitol Building, but he has refused.

In an open letter to Alito published by the conservative website The Bulwark on June 13, former Deputy Solicitor General Philip Allen Lacovara lays out a case for recusal.

Lacovara has a long history in American law. During the 1970s, he served as counsel to Watergate special prosecutor Leon Jaworski.

"The drip-drip-drip of reports about the roles that you and your wife are playing in partisan controversies has risen to a torrent," Lacovara tells Alito in the letter. "You must reconsider your decision not to recuse yourself from pending and future cases that come before the Supreme Court involving former President Donald Trump or participants in the events at the Capitol on January 6, 2021. Compliance with governing law and public respect for the integrity of the Court's process require this result."

Alito made an effort to explain his position in a letter to two Democratic U.S. senators: Illinois' Dick Durbin and Rhode Island's Sheldon Whitehouse. But Lacovara finds Alito's explanation totally unconvincing.

Lacovara tells the Bush appointee, "The only reasons you have offered for refusing to step aside misperceive both the governing legal standards for recusal, on one hand, and the reasonability of concerns about your impartiality, on the other. As a consequence, your decision against recusal in any January 6th-related cases has already begun undermining the legitimacy and integrity of any decision in which you participate on these important issues."

The former deputy solicitor general stresses that federal law "makes recusal mandatory" in cases "when a justice's impartiality might reasonably be questioned" or "when a spouse of the justice has an 'interest' that could be 'substantially affected' by the outcome of the proceeding."

Justice Alito said that his wife, not him, was the one who had an upside-down flag hanging outside their home in Alexandria, Virginia on January 17, 2021.

"Although you originally suggested that your wife's display of the upside-down American flag was merely part of a local spat with a neighbor," Lacovara tells Alito, "her recently recorded words make clear that she uses these displays to communicate her point of view supporting conservative causes, particularly that of the Christian Right."

Lacovara laments that Justice Alito's refusal to recuse from January 6-releated cases can only harm the High Court's credibility.

"Your refusal to recuse yourself taints the process and inevitably will undermine confidence in the Court's decision on the merits," Lacovara tells the justice. "Accordingly, I respectfully invite you to reconsider your decision and to take the proper course: recuse."

Philip Allen Lacovara's full open letter to Justice Samuel Alito is available at this link.

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