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Responding to Alito's Non-Recusal Notice

Fix the Court’s Gabe Roth issued this statement is response to Justice Alito’s statement in which the justice declined to recuse from tax case, Moore v. U.S., that’s being argued next term despite a clear conflict:

“Justice Alito’s decision to dress up some misguided views of his ethical obligations as a formal Court opinion doesn’t make the missive any more correct or any less imperious.

“Alito apparently believes that as a justice, he’s not bound by federal conflict-of-interest laws. But why then does he recuse each year from more than a dozen petitions involving companies whose shares he owns? Disqualification from a stock case under the law is no different from disqualification in a case where a justice’s ‘impartiality might reasonably be questioned.’ And reasonable people, like Chairman Durbin, are questioning Alito’s impartiality.

“Alito is of course free to give multiple interviews to the Wall Street Journal. But — and this should be obvious to everyone — David Rivkin’s participation in them was not necessary for them to take place. It’s not like James Taranto marks emails coming from a address as spam.

“Under a basic understanding of attorney and judicial ethics, what should have happened is that as the first interview was being set up, Rivkin, knowing his Moore petition was under consideration, should have bowed out of the process and let Alito and Taranto proceed. That Rivkin appeared as a co-byline in both the first interview, when his petition was pending, and in the second interview, given just after the petition was granted, raises ethical questions that seem obvious to everyone but Alito and require disqualification.

“Finally, Alito’s examples of justices not recusing in media cases after said outlets had interviewed them are inapt. It’s not like Nina Totenberg’s name was on the cover of a Supreme Court brief at the time she interviewed some justices. What an embarrassment.”

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