Maryland Democratic Rep. Jamie Raskin has offered an op-ed to the New York Times that lays out a pathway for the Justice Department to force the recusals of SCOTUS Justices Sam Alito and Clarence Thomas in the January 6 cases.
“Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection,” the Maryland Democrat said in an opinion piece in The New York Times published Wednesday. “Each justice decides for him- or herself whether he or she can be impartial.”
Alito has explicitly said he will not recuse himself, while Thomas doesn’t appear to be prepared to either.
Raskin says that Attorney General Merrick Garland and the DOJ can invoke the Constitution to force a recusal, since begging them to recuse themselves as a matter of integrity appears ineffective.
According to Raskin, the DOJ “can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.”
“The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455,” Raskin said.
Raskin says the Constitution is the supreme law of the land, and the recusal statue applies to Supreme Court justices like other judges.
“Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.
Ignoring the recusal statute would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.
Raskin says the associate Supremes Sotomayor, Coney-Barrett, Kavanaugh, Gorsuch, Brown-Jackson, Kagan and Chief Justice Roberts have a constitutional and statutory obligation to enforce the recusal statute.
And there are directly applicable statutes related to a spousal interest:
The federal statute on disqualification, Section 455(b), also makes recusal analysis directly applicable to bias imputed to a spouse’s interest in the case. Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”
