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To hear Democrats tell it, the existence of our very democracy is at stake because a grandmother once flew a historic flag at her summer beach house. Our 235-year-old republic may not survive, Democrats lecture in serious tones, because this grandmother once—years ago—flew an American flag upside down in a private dispute with her neighbor.
These acts of treachery are so dangerous, Democrats argue, that this woman's husband, Supreme Court Justice Samuel Alito, must take the extraordinary step of recusing himself from two cases pending before the Court. Mind you, Mrs. Alito is not a party to either case, has no financial or personal interest in the outcome of either case, and as far we know has never even expressed a public opinion about the two cases.
But these facts don't matter to Democrats. By their logic, Justice Alito is somehow responsible for the hidden messages embedded in his wife's flag-flying hobby. And these secret meanings—perceptible, it seems, only to partisan Democrats—are so obvious and reckless that the only appropriate recourse is Justice Alito's recusal.
Democrats can't really believe this nonsense, right?
Of course not. This whole charade is about politics and power. These Democrats want to force Justice Alito to recuse from two upcoming cases because they assume that they will not agree with his opinions in the cases. They want to shrink the Court so that their preferred liberal justices can decide the cases. And so Democrats are manufacturing a scandal out of thin air as a pretext to call for Justice Alito's recusal.
Justice Alito has persuasively explained to his two most prominent Senate antagonists, Senator Dick Durbin and Senator Sheldon Whitehouse, why Mrs. Alito's flag-flying does not demand recusal. After explaining to the senators the relevant standard for recusal, Justice Alito wrote: "I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal."
Not to be deterred, Representative Jamie Raskin has taken to the pages of the New York Times to theorize how the Biden Administration can force Justice Alito to recuse. Mr. Raskin, a former law professor, has apparently scoured the law and determined there exists in the penumbra of federal statutes and Court precedent the ability of the Justice Department to petition for the recusal of Justice Alito, as well as the recusal of Justice Clarence Thomas (for equally baseless reasons).
Such an authority—that other justices may force the recusal of a colleague—has no specific basis in federal law, of course, and the relevant case law is limited to lower court and state court judges. Mr. Raskin is apparently unaware that the Court's recently imposed Code of Conduct was signed by all nine justices and that it reaffirms the duty of each justice to make recusal decisions for themselves.
The Supreme Court is the only court specified in the Constitution. Unlike lower courts, when a justice recuses, there is no other justice who may step in and hear the case. The Court's Code of Conduct appropriately reflects that a justice is presumed to be impartial and should only recuse in extraordinary circumstances.
Democrats know Justice Alito won't recuse. No reasonable and unbiased person, knowing all the relevant circumstances, would believe that Justice Alito cannot dispassionately hear the two cases. Democrats are predictably already lecturing about the Supreme Court's "crisis" of ethics and the "need" to pack the Court with six additional (Biden-appointed) Justices to rid the Court of its taint of scandal.
Americans see through the Democrats' scaremongering. They know Democrats didn't demand that Justice Ruth Bader Ginsburg recuse herself from a case about President Trump's tax returns even after she criticized him for not releasing his tax returns. They know Democrats never question the ethics of justices appointed by Democrat presidents. And they know Democrats have a double standard when it comes to the family members of liberal judges, like Judge Juan Merchan in Manhattan.
Make no mistake, Justice Alito is an honorable public servant and a faithful jurist. Mrs. Alito has sacrificed so her husband can serve. They deserve our respect, not our ire.
The politically motivated attacks on the Alito family are wrong and dangerous in light of the nonstop protests at the homes of Supreme Court justices and the assassination attempt on Justice Brett Kavanaugh and his family.
Americans see these attacks for what they are: a blatantly political effort to intimidate Justice Alito and influence the Supreme Court's work. The attacks won't work, and they must stop.
Rep. Jim Jordan is a Republican U.S. Congressman representing Ohio.
The views expressed in this article are the writer's own.
