Member Newsletter
I wanted to share a few thoughts about the Sam Alito problem. I don’t want to preach to the choir on this, but there are two points which should be highlighted. The first is that even on its own terms, Alito’s rationale for not recusing himself doesn’t hold up. His argument is essentially this: My wife is her own person with her own views and ways of expressing herself. I asked her to stop but she refused to do so and I couldn’t compel her to do anything. He notes that they co-own the properties in question, so even in the narrow sense of control over a piece of property, he couldn’t dictate anything. It was his wife, not him. He did what he could, but couldn’t do more. End of story.
This is not how federal ethics guidelines work. They make very clear that the appearance of a conflict of interest or impropriety, for these purposes, counts as much as actual ones. They also make clear that the actions of a spouse count toward creating such appearances even though, certainly in the early 21st century, a judge can’t dictate a spouse’s actions. The ethics guidelines specifically deal with the spouse issue. And they say “it’s my spouse, not me” isn’t a defense.