Supreme Court recusal dispute stirs lots of pots’ kettle calls 

The controversy over whether Supreme Court Justices Clarence Thomas and Samuel Alito should recuse themselves in cases involving the 2020 presidential election and the Jan. 6 assault on the U.S. Capitol has stirred the pot to a roiling boil.   

Taking the lead were Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and Federal Courts, Oversight Subcommittee Chairman Sheldon Whitehouse (D-R.I.). In a May 23 letter to Chief Justice John G. Roberts, the senators requested a meeting with Roberts to discuss what they termed an “ethics crisis” at the court and urged him to “take appropriate steps to ensure that Justice Alito will recuse himself from any cases related to the 2020 presidential election and January 6 attack on the Capitol….” 

Their letter also criticized the recently adopted, first-ever code of conduct for the court on grounds the recusal language was purely voluntary for individual justices to decide. Last Thursday, Chief Justice Roberts responded by letter, formally turning-down their requests.

On the previous day Alito also responded to the Durbin-Whitehouse letter, saying he would not recuse himself and that he had no hand in flying the upside-down American flag at issue. It was all his wife’s doing.

Just hours later, House Judiciary Committee Ranking Member Jerry Nadler (D-N.Y.) and his Democratic committee colleagues sent their own letter to Roberts, asking, “Do you plan to request Justice Alito recuse himself from any cases related to Donald Trump? If not, why not?”

On Wednesday of last week one of those Judiciary Committee members, Rep. Jamie Raskin (D-Md.), published an op-ed in the New York Times titled, “How to Force Justices Alito and Thomas to Recuse Themselves.” He asserted that the two justices are mandated by law to recuse themselves. The law (28 USC 455) reads in part: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Raskin suggests three ways in which compelling recusal could be achieved: (1) the Department of Justice and any of the prosecutors of the Jan. 6 cases can petition the other seven justices to require the other two to step aside; (2) the Justice Department and attorney general can invoke the Constitution’s “due process clause” and the recusal statute in a motion for recusal; and (3) once the issue is raised, the court would feel compelled to force the justices “to recuse themselves.”

As for the first two options, there is nothing in the statute that gives third parties standing to sue for recusal. Raskin, a constitutional law professor, seems to presume that any dispute can be resolved through the courts. Obviously, if such a case lands in the lap of the Supreme Court on appeal, Alito and Thomas would surely have to recuse themselves as conflicted parties.

The self-recusal option should not surprise members of Congress since similar remedies apply in both houses of Congress. Senate Rule XII, “Voting Procedure,” reads in paragraph 3: “A Member, notwithstanding any other provisions of this rule, may decline to vote in committee or on the floor on any matter when he believes that his voting on such a matter would be a conflict of interest.”

House Rule III, clause 1, requires every member to be present in the Hall of the House and vote on each question put, “unless having a direct personal or pecuniary interest in the event of such question.” According to House precedents, there were two instances in 1848 and 1873, in which the Speaker ruled that “because of personal interest, the Member should not vote.” The footnote continues: “on all other occasions and in the later practices, the Speaker has held that the Member and not the Chair should determine the question.”

Summarizing the rulings of two recent Speakers: “The Speaker has denied the Speaker’s own power to deprive a Member of the Constitutional right to vote” (Speaker Carl Albert on Dec. 2, 1975, and Speaker Thomas P. O’Neill, Jr. on March 1, 1979).

Those in Congress today urging the Supreme Court to embrace a stricter enforcement regime are engaging in a classic case of the pot calling the kettle black. Will these House and Senate members agree to let the courts or other entities decide for them if they have a conflict of interest and must recuse themselves? Of course not.

Members of Congress are immune under the Constitution from being “questioned in any other place” for “any speech or debate;” and that presumably applies to any related votes they cast. The Supreme Court does not have that explicit constitutional protection though it still could have the last word on the matter.

Don Wolfensberger is a 28-year congressional staff veteran, culminating as chief of staff of the House Rules Committee in 1995. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and,“Changing Cultures in Congress: From Fair Play to Power Plays” (2018). The views expressed are solely his own.