In a seven-paragraph statement today (see last four pages of Court’s order list), Justice Alito persuasively explains why he is declining Senator Durbin’s demand that he recuse from the case of Moore v. United States. In recent months, Alito participated in two interviews that resulted in two articles in the Wall Street Journal. Durbin based his demand on the fact that David Rivkin, one of the attorneys for the petitioners in Moore, jointly conducted the interviews and wrote the articles with WSJ’s editorial-features editor James Taranto.
As Alito points out, Rivkin is “both a much-published opinion-journalist and a practicing attorney.” What matters here is:
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.
Further:
There was nothing out of the ordinary about the interviews in question. Over the years, many Justices have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox News, National Review, and ABC. Similarly, many of my colleagues have been interviewed by attorneys who have also practiced in this Court, and some have co-authored books with such attorneys. Those interviews did not result in or require recusal.
More broadly:
[W]e are often presented with cases in which one of the attorneys has spoken favorably or unfavorably about our work or character. Similarly, we regularly receive briefs filed by or on behalf of Members of Congress who have either supported or opposed our confirmations, or who have made either favorable or unfavorable comments about us or our work. We participate in cases in which one or more of the attorneys is a former law clerk, a former colleague, or an individual with whom we have long been acquainted. If we recused in such cases, we would regularly have less than a full bench, and the Court’s work would be substantially disrupted and distorted.
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.
(For detailed support, see Alito’s footnotes.)