Justice Alito Refuses To Recuse Himself In Lawyer Case

Justice Samuel Alito, part of the U.S. Supreme Court’s six-judge conservative majority, said Friday he had no intention of stepping back from considering a case involving a lawyer with whom he had spent several hours in interviews earlier this year and who had written two articles in defense and praise of Alito.

“There is no valid reason for my recusal in this case,” Alito wrote in a statement released Friday with the court’s periodic listing of cases it will take up or reject considering.

The lawyer, David Rivkin, works for Baker Hostetler LLP, a major law firm with more than 1,000 attorneys and offices in 17 cities in the U.S. He is one of the members of a team of lawyers representing the plaintiff in the case, Moore v. United States, which involves a challenge to the 2017 tax cut law pushed through Congress by Republicans.

As part of the law’s overhaul of the corporate tax system, it required companies with profits held overseas to make a one-time repatriation, which was then taxed.

Rivkin was also a co-author for two articles appearing in the Wall Street Journal’s op-ed section in April and July. The latter caused a stir because in it Alito said Congress had no constitutional grounds to impose ethics rules on the court.

In an Aug. 3 letter to Chief Justice John Roberts seeking Alito’s recusal, Sen. Richard Durbin (D-Ill.) chairman of the Senate Judiciary Committee, said Alito’s actions created at least the appearance of impropriety.

“Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties,” Durbin wrote.

Alito called the request, from Durbin and nine other Democratic senators, “unsound.”

Senator Dick Durbin (D-Ill.) speaks during the Senate Appropriations subcommittee hearing May 11.
Senator Dick Durbin (D-Ill.) speaks during the Senate Appropriations subcommittee hearing May 11.

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“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,” Alito wrote.

Durbin also said Rivkin represented Leonard Leo, co-chairman of the libertarian Federalist Society and a key player in the GOP’s judicial nomination process. Durbin said his panel is looking into Leo’s role in helping Alito get free travel and lodging for a trip in 2008. Alito came under fire for not reporting the travel in his financial disclosure forms.

Alito said his acceptance of the trip was not improper and reporting it was not required under a “personal hospitality” exception. But the story, along with disclosures fellow justice Clarence Thomas had similarly failed to report travel and gifts from billionaire Harlan Crow, led Senate Democrats to push for tightening the court’s ethics rules.

Alito’s statement did not address Durbin’s objections related to Leo but said if there were recusals in all the cases involving former colleagues, clerks or acquaintances of justices, the court’s work would be disrupted.

“In all the instances mentioned above, we are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts. And that is what we do,” Alito wrote.

“When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate.”

– U.S. Supreme Court Justice Samuel Alito

A request for comment from Rivkin was not immediately answered.

In the July article, Rivkin and his co-author James Taranto wrote Alito sat for a combined four hours of interviews, including one in Alito’s Supreme Court office, and that he answered questions “with a candor that is refreshing and can be startling.”

The pair wrote the court’s critics weren’t interested in more transparency, as they claimed.

“Their hostile reactions to our April interview and his June op-ed suggest — no surprise — that they’re really after ideologically congenial rulings, not to mention conformist press coverage,” Rivkin and Taranto wrote.


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