[Congressional Record Volume 170, Number 94 (Monday, June 3, 2024)]
[Senate]
[Pages S3917-S3918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. DURBIN. Madam President, when I went to college here in
Washington, at Georgetown, I used to come into this Capitol Building
and sit up there where the visitors are now sitting and watch what was
going on on the Senate floor.
I can remember so many things, particularly the day that Bobby
Kennedy gave a speech about Vietnam that was highly anticipated. He
came walking through that door with his brother, Ted Kennedy--both of
them Senators, one from New York, one from Massachusetts.
It was a historic moment, it was a magical moment. For a college
student, it was just overwhelming to be a witness to that history and
to realize what this Chamber has meant to this Nation, what this
building has meant to this Nation throughout our history.
That is why I will never forget what happened in this Chamber on
January 6, 2021. Violent extremists stormed the Capitol to prevent
certification of the 2020 Presidential election. Donald Trump was
engaged in the Big Lie.
For the first time really in the history of the United States, he
questioned the legal outcome of an election.
Madam President, you and I both know that is fundamental to
democracy--the belief that we can have the peaceful transition of the
decisionmakers guided by the people of this country without political
interference.
As insurrectionists ransacked this building, many carried flags and
banners to show their support for former President Trump in his effort
to overturn the election--the Big Lie. Two of the more prominent
symbols of the so-called ``Stop the Steal'' campaign on behalf of
President Trump were on display that day. One was an American flag
flown upside down and the other a so-called ``Appeal to Heaven'' flag.
While the events of January 6 were hard to imagine, reports that the
same battle flags flew outside Supreme Court Justice Samuel Alito's
home were nearly as shocking. In January of 2021, less than 2 weeks
after the insurrection at the Capitol, an upside-down American flag
flew over Justice Alito's front lawn in suburban Virginia. In the
summer of 2023, the ``Appeal to Heaven'' flag flew on the flagpole of
the Alitos' beach home in New Jersey. While these flags may have once
held other meanings, in the year 2021, they were closely associated
with election deniers and extreme rightwing politicians. They are, in
fact, the battle flags of Trump's MAGA movement.
The Supreme Court's authority ultimately rests on its reputation and
public confidence. The Supreme Court doesn't own the Army. It doesn't
have a vast Treasury. It depends on people trusting the Justices to
make honest, professional decisions. This reputation and public
confidence is the strength of the Supreme Court. That is why the
Supreme Court's recently adopted code of conduct requires Justices to
avoid impropriety and the appearance of impropriety in all activities.
Both the code of conduct and Federal law require Justices to recuse
themselves when their impartiality might reasonably be questioned.
The flying of these flags marks a new, disturbing chapter in the
Supreme Court's ongoing ethical crisis. It suggests that Justice Alito
has not only chosen sides in an ongoing political dispute but that he
has also announced his allegiance in pending legal disputes.
As we speak, the Supreme Court is considering two critical cases
relating to the 2020 Presidential election and the January 6
insurrection. In Trump v. United States, the Supreme Court will decide
whether former President Trump is immune from criminal prosecution for
his efforts to overturn the election. In Fischer v. United States, the
Court--again, the Supreme Court--will determine whether the Federal
felony obstruction statute applies to the January 6 rioters who tried
to stop Congress from exercising its constitutional duty to certify the
election. The Court's rulings on these issues will be critical to
ensuring that those responsible for one of the darkest chapters in our
history are held accountable.
Displaying the upside-down American flag and ``Appeal to Heaven''
flag creates the appearance that Justice Alito has already aligned
himself with the ``Stop the Steal'' campaign. He cannot credibly claim
to be an umpire--calling balls and strikes--in these cases. He has
donned the jersey of his favorite team. That is why I called on Justice
Alito to recuse himself and why I urged Chief Justice Roberts to
finally step up and take the steps necessary to ensure that Justice
Alito does not sit on those cases and, rather, that he recuse himself.
Last week, Justice Alito refused my request.
I am going to keep this letter--the original version that was sent to
me and sent to the White House by Justice Alito--in which he makes an
argument that these flags should not be taken seriously; that it was
his wife's decision. There were complications in her decision. It is
hard to accept this. It is hard, first, to believe that this man we are
asking to recuse himself from these Supreme Court cases has somehow
stood in judgment of himself and decided that he did nothing unethical
and should not recuse himself. He refused our request to recuse himself
from these cases. In doing so, he claimed he bears no responsibility
for the January 6-related flags flying over his homes. Instead, he
placed the blame solely on his wife.
He went on to downplay the significance of the upside-down American
flag display, claiming it was part of a dispute with his neighbors, and
he denied knowing about the connection between the ``Appeal to Heaven''
flag and the January 6 insurrection on the Capitol.
Chief Justice Roberts, likewise, refused my request to take action
and simply deferred to Justice Alito's decision. But Justice Alito's
refusal to recuse begs the question: Why should he have the sole power
to decide whether his recusal from the case is necessary?
Additional reporting has already called into question his version of
events with text messages and even a recording of a call to police
suggesting the neighborhood dispute occurred after the upside-down
American flag flew over the Alito residence. Whether Justice Alito
raised these flags himself or stood idly by while his wife did so, the
fact remains the same: A reasonable person would question Justice
Alito's impartiality to the cases relating to the 2020 election and
January 6. Recusal is, therefore, necessary.
But the consequences of Justice Alito's actions go far beyond this.
He needs to recuse himself from these cases. By displaying two symbols
of the MAGA Republican movement, Justice Alito presented himself to the
world as a political actor and an ally of the far right. His actions
suggest that no matter what arguments are made or what evidence is
presented at the Supreme Court, his decisions will align with his
personal beliefs and policy preferences.
And no matter what excuses or explanations he provides now or in the
future, it will be hard for anybody before the Court to believe that
Justice Alito approaches that case without bias.
We cannot afford the further erosion of public confidence in our
courts. Our faith in the impartiality of judges is essential to the
functioning of our legal system and our form of government. For more
than a year, story after story has broken about ethical misconduct by
sitting Justices of the Supreme Court. We have learned that some
Justices, including Justice Alito again, accepted gifts and travel from
billionaires with interests before the Court. The Senate and the
American people deserve to know the full extent of how immense wealth
is used to buy private access to the Justices. That is why the Senate
Judiciary Committee is exercising its constitutional authority to
investigate what has been provided to the Justices.
I will continue to push for legislation--a bill sponsored primarily
by Sheldon Whitehouse, but many of us have joined as cosponsors--to
establish a binding code of conduct and recusal standards for the
Justices.
Why in the world should the highest Court in our land have the lowest
standard of ethics? If every other Federal judge is held to a standard
of ethics to make certain that their reputations are intact, why would
that not
[[Page S3918]]
apply to the Justices sitting on the highest Court of the land?
We will continue to push for legislation to create a binding code of
conduct and recusal standards that the American people can see. Last
year, the Judiciary Committee reported to the floor the Supreme Court
Ethics, Recusal, and Transparency Act. Importantly, this legislation's
ethical and recusal requirement would apply equally to every Justice of
the Supreme Court regardless of the party or the President who
appointed them. The Supreme Court has failed to act to address the
ethical crisis that has engulfed it, and so the Senate must do so.
This is a simple fact: There is a Chief Justice of the Supreme Court,
John Roberts. It is within his power to resolve this ethical issue
tonight--to have it done by the morning--to make it clear that the
Supreme Court is taking a different course, one that is credible to the
American people.
Justice Alito cannot stand in judgment of himself. The fact that we
have to come to the floor of the Senate to plead this case makes it
clear that there are no avenues to be followed for ethical
consideration for the Court today. That can change. The bill that is
pending on the calendar is a step in the right direction, and I totally
support it.
Madam President, I close by asking unanimous consent that the letter
sent to me by Justice Alito be printed in the Congressional Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Supreme Court of the United States,
Washington, DC, May 29, 2024.
Hon. Richard J. Durbin,
Hon. Sheldon Whitehouse,
U.S. Senate, Washington, DC.
Dear Senators Durbin and Whitehouse: This is in response to
your letter of May 23 to the Chief Justice requesting that he
take steps to ensure that I recuse in Trump v. United States,
No. 23-939, and any other cases ``related to the 2020
presidential election'' or ``the January 6th attack on the
Capitol.'' As the Court has pointed out, ``[i]ndividual
Justices, rather than the Court, decide recusal issues.'' I
am therefore responding directly to your letter. In it, you
claim that two incidents involving the flying of flags
created an appearance of impropriety that requires my
recusal.
The applicable provision of our Code of Conduct states as
follows:
``B. DISQUALIFICATION.
(1) A Justice is presumed impartial and has an obligation
to sit unless disqualified.
(2) A Justice should disqualify himself or herself in a
proceeding in which the Justice's impartiality might
reasonably be questioned, that is, where an unbiased and
reasonable person who is aware of all relevant circumstances
would doubt that the Justice could fairly discharge his or
her duties.'' Code of Conduct for Justices of the Supreme
Court of the United States, Canon 3(B)(1)-(2).
The two incidents you cite do not meet the conditions for
recusal set out in (B)(2), and I therefore have an obligation
to sit under (B)(1).
The first incident cited in your letter concerns the flying
of an upside-down American flag outside the house in Virginia
where my wife and I reside. In considering whether this event
requires recusal, an unbiased and reasonable person would
take into account the following facts. As I have stated
publicly, I had nothing whatsoever to do with the flying of
that flag. I was not even aware of the upside-down flag until
it was called to my attention. As soon as I saw it, I asked
my wife to take it down, but for several days, she refused.
My wife and I own our Virginia home jointly. She therefore
has the legal right to use the property as she sees fit, and
there were no additional steps that I could have taken to
have the flag taken down more promptly.
My wife's reasons for flying the flag are not relevant for
present purposes, but I note that she was greatly distressed
at the time due, in large part, to a very nasty neighborhood
dispute in which I had no involvement. A house on the street
displayed a sign attacking her personally, and a man who was
living in the house at the time trailed her all the way down
the street and berated her in my presence using foul
language, including what I regard as the vilest epithet that
can be addressed to a woman.
My wife is a private citizen, and she possesses the same
First Amendment rights as every other American. She makes her
own decisions, and I have always respected her right to do
so. She has made many sacrifices to accommodate my service on
the Supreme Court, including the insult of having to endure
numerous, loud, obscene, and personally insulting protests in
front of our home that continue to this day and now threaten
to escalate.
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. I am therefore required to
reject your request.
The second incident concerns a flag bearing the legend ``An
Appeal to Heaven'' that flew in the backyard of our vacation
home in the summer of 2023. I recall that my wife did fly
that flag for some period of time, but I do not remember how
long it flew. And what is most relevant here, I had no
involvement in the decision to fly that flag.
My wife is fond of flying flags. I am not. My wife was
solely responsible for having flagpoles put up at our
residence and our vacation home and has flown a wide variety
of flags over the years. In addition to the American flag,
she has flown other patriotic flags (including a favorite
flag thanking veterans), college flags, flags supporting
sports teams, state and local flags, flags of nations from
which the ancestors of family members came, flags of places
we have visited, seasonal flags, and religious flags. I was
not familiar with the ``Appeal to Heaven'' flag when my wife
flew it. She may have mentioned that it dates back to the
American Revolution, and I assumed she was flying it to
express a religious and patriotic message. I was not aware of
any connection between this historic flag and the ``Stop the
Steal Movement,'' and neither was my wife. She did not fly it
to associate herself with that or any other group, and the
use of an old historic flag by a new group does not
necessarily drain that flag of all other meanings.
As I said in reference to the other flag event, my wife is
an independently minded private citizen. She makes her own
decisions, and I honor her right to do so. Our vacation home
was purchased with money she inherited from her parents and
is titled in her name. It is a place, away from Washington,
where she should be able to relax.
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 this event does
not meet the applicable standard for recusal. I am therefore
duty-bound to reject your recusal request.
Sincerely yours,
Samuel A. Alito, Jr.
Mr. DURBIN. I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORNYN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.