Decades ago, as a new judge, I was lectured extensively on judicial ethics. One of the precepts that struck me profoundly was the judge’s “duty to sit,” meaning that judges should never recuse themselves from cases out of inconvenience, laziness or fear of adverse personal consequences. The duty to sit is not one of the enumerated canons of judicial ethics. It is an implied duty, which, over the centuries, has been woven into the fabric of what it means to carry the title “Honorable,” and to uphold the highest ethical standards the public rightly expects of us.
Clarence Thomas and Samuel Alito have a different take on the duty to sit. They see it as the duty to stay in a case despite clear and convincing evidence that they have absolutely no business hearing it at all. For example, in the January 6 case on presidential immunity currently before the Supreme Court, neither Thomas nor Alito is backing out despite overwhelming signs that they should. Their duty to sit is not out of fealty to the Constitution, the canons of judicial ethics, longstanding tradition, or the branch of government they represent at the highest level, but to the Federalist Society, ring-wing billionaires, Christian nationalists, their own personal political and ideological views and preferences, and, who, knows, maybe to Donald Trump himself.
Harsh accusations? You bet, but has anyone offered a good defense? I haven’t heard one. The one I hear most is the equivalent of “the dog ate my homework” defense – blame my wife, not me. So honorable. For two guys who enjoy the label “devout Catholics,” throwing their wives under the bus sure comes off as unbiblical to me. To claim that their wives function with total independence, and without their knowledge, is absurd and totally indefensible. However, they can be as arrogant as they want because they know that, unlike every other judge in America, they can get away with it.
Because they have no defense, the Thomas-Alito defenders have no choice but to deflect criticism against the justices by criticizing the critics: the surest sign of a weak or non-existent defense.
Let’s face it, Thomas and Alito are drooling over this rare opportunity to delay Trump’s January 6 trial and be part of a majority that cuts some slack to future autocratic Presidents; or, if in the minority, to write a blistering, I’m-right-they’re-wrong screed in dissent. Why? Because they are compelled by a deep, personal desire to send a message to their loyal followers – one that was first spoken by Col. Nathan Jessup in A Few Good Men: “You want me on that wall. You need me on that wall.”
The flip side of the genuine duty to sit is the ethical duty not to sit when the canons of ethics cry out for recusal.
NOTE: While writing this piece, the verdict came down in the Trump hush money trial. The verdict and the aftermath proved two things to me. First, it reaffirmed my faith in juries and the jury system, as I wrote about previously in this blog (Can We Trust Juries to do Us Right by Donald Trump?). Second, when Ted Cruz and Marco Rubio viciously and untruthfully attacked our justice system, Trump proved he doesn’t lie about everything. Ted Cruz is indeed a liar and Marco Rubio is indeed a little man.
ADDITIONAL NOTE: For an excellent essay on this topic by Rep. Jamie Raskin (D-MD), go to: NYTIMES ARTICLE>>
“Harsh accusations?” I suggest you are being way too charitable, here, Jim. Samuel Alito is a liar. A bald-faced liar. He lied before the Senate during his confirmation hearing when he stated under oath that he comported himself within the ethical constraints that apply to all other federal judges. That is a complete crock.
And his attempt to lay this at the feet of his insurrectionist-loving wife? That’s a lie too. Keith Olbermann lays it all bare here: https://www.youtube.com/watch?v=VWHsg1y09pw&t=549s
And even if what he’s said is true, it doesn’t matter. As you well know, avoiding the appearance of impropriety requires recusal, not suddenly recognizing that there is only one woman in America is entitled to be pro-choice, Martha Ann Alito, and it’s not about her body, but her flag preferences.
The outrageousness is breathtaking. Any other judge would’ve been removed from the bench long ago. Same with Thomas. And Roberts. And Gorsuch, And Kavanaugh. and Barrett. All six in the majority committed perjury during their confirmation hearings when they expressed fidelity to the rule of law and stare decisis.
THEY LIED. All you need as evidence of that assertion is a copy of the Dobbs decision, and transcripts of their confirmation hearings. It’s the one lesson all of them took from the Bork hearing. “If you want a seat on the court, lie to them” . . . ’cause when you tell the truth (as Bork did), the Senate will not confirm you.
What all these people have done to our profession is disgusting. We live in dangerous times. Dr. Strangelove has been moved from the comedy section of the film store to the documentary section. I am genuinely fearful for our country.
Steve, I’m a judge. I’m supposed to be judicious.
Though each of these men deserve to be under a moving bus, so do their wives. Good piece, Jim.
I appreciate your “reticence,” but Alito and Thomas and Roberts and Gorsuch and Kavanaugh and Barrett forfeited the right to be treated judiciously when they decided a seat on the bench was worth committing perjury for.
Today prosecutors in Wisconsin finally jumped into the fray. They charged two more lawyers, that sleazy Kenneth Chesebro and equally sleazy James Troupis, to the ever expanding list of bar card carrying criminals who helped foment a self-coup against the United States of America.
Charges have now been filed in Georgia, Michigan, Arizona, Nevada and Wisconsin. Election fraud is a thing, but its only documented practitioners are members of the GOP.
Steve,
The Supermajority all knew well that by telling the honest truth at their confirmation hearings, they would get sent back on the Circuit Court of Appeals.
As for GOP lawyers, were they exempt from talking the Attorneys’ Oath when they became lawyers, or do they merely fail to take it to heart?
“YOU CAN’T HANDLE THE TRUTH!”