A version of this story appeared in the On Background newsletter from The Washington Times. Click here to receive On Background delivered directly to your inbox each Friday.
Senate Minority Leader Mitch McConnell suggested Wednesday the Supreme Court could punish Senate Democrats who have pushed for the recusal of some of the conservative justices.
The Kentucky Republican said three senators have urged Chief Justice John G. Roberts Jr. to remove Justice Samuel A. Alito Jr. from cases related to the U.S. Capitol riot on Jan. 6, 2021.
At least one Democratic senator suggested the chief justice should not have Justice Alito or Justice Clarence Thomas write certain majority opinions, Mr. McConnell added.
The Senate Democrats have pushed for a meeting with Chief Justice Roberts, but he declined, saying it would be improper to meet with one political party as the high court is issuing rulings.
Mr. McConnell specifically called out Democratic Sens. Sheldon Whitehouse of Rhode Island and Richard Blumenthal of Connecticut for being members of the Supreme Court bar and engaging in improper conduct as lawyers.
“These senators are telling the Chief Justice, privately, to change the course of pending litigation. This is known as ex parte communication and it is frowned upon by the ABA’s [Rules of Professional Conduct],” Mr. McConnell said on the chamber floor.
“This matters because at least two of these colleagues of ours, the junior senator from Rhode Island and the senior senator from Connecticut, seem to be members of the Supreme Court Bar. If so, they are, therefore, potentially engaged in unethical professional conduct before the Court.”
He said senators may be able to act a certain way as politicians, but lawyers are governed by the rules of the court.
“They are officers of the court and bound by a different set of rules than a mere senator. These rules provide for discipline against those who engage in ‘conduct unbecoming’ an officer of the court,” Mr. McConnell said.
“The Court should take any remedial action it feels to be appropriate,” Mr. McConnell said.
The high court has the “power to police the ethical practice of law among the members of its Bar,” he added.
The comments come after Democrats have recently called for Justice Alito to recuse himself from cases related to the U.S. Capitol riot over an upside-down American flag being flown outside his Alexandria, Virginia, home days after the violent protest.
He also came under scrutiny for flying an “Appeal to Heaven” flag outside his New Jersey residence in 2023. Some rioters at the Capitol on Jan. 6, 2021, carried that same flag.
Justice Alito said the flags were his wife’s decisions and that he’s not biased in any dispute.
“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,” he said in his letter to top Democrats on Capitol Hill.
“My wife is an independently minded private citizen. She makes her own decisions, and I honor her right to do so,” he added. “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.”
The flag-flying incidents were reported by the New York Times. Last year, ProPublica published a series of articles critical of Justice Thomas and ties to a GOP mega-donor and critics have suggested he has a conflict of interest in Jan. 6 cases since his wife attended the rally but left before the riot at the Capitol began.
The calls for recusal come as the high court is weighing two major disputes this term over whether Mr. Trump is immune from charges stemming from his contest of the 2020 election results and another dispute over an obstruction charge facing hundreds of Jan. 6 defendants, including Mr. Trump.
Those opinions are expected to come by the end of June.
Mr. Whitehouse said Mr. McConnell’s criticism suggests he’s doing something right and that his communications with the chief justice were done through a public letter, not in secret.
“When Mitch McConnell, Leonard Leo and the Wall Street Journal editorial page are all criticizing you about the Supreme Court, it’s a pretty good sign you’re on the right track,” Mr. Whitehouse said.
“This was a public letter to the court on an administrative matter pointing out the lack of any meaningful ethics process to enforce our recusal law, and asking the chief justice to act in his administrative role as chief. This was not some secret request for a justice to rule one way or the other on the merits of a case. Our responses from Justices Roberts and Alito confirm that they too did not see it as an ex parte communication.”
Mr. Blumenthal did not immediately respond to a request for comment.
Contact the author
Please read our comment policy before commenting.