Indeed, Stern’s attack rests on the rickety notion that Alito is trying to conceal something from the public. When he claims, “you must dig through [Ailito’s] financial disclosures,” what he really means is opening the
“Fix the Court” website (or just following
the press release that likely gave him the idea for the piece in the first place) and looking at the justice’s publicly available disclosure. In this case, to “dig” means — generously speaking — five minutes of time.
And since this isn’t the first instance that Alito has recused himself in a case involving Phillips, the grounds for recusal are “obvious.” That doesn’t stop Stern from framing the lack of an explanation as some kind of major ethical lapse. To do so, he juxtaposes Alito’s recusal with Elena Kagan’s recent explanation of recusal in Holland v. Florida without any relevant context.
In Holland v. Florida, Kagan might have become the first justice to offer an official explanation for a recusal in history. Good for her. Alito conducted himself in the same manner that hundreds of justices have conducted themselves in thousands of other recusal cases. Since Roberts sent his ethics statement to Congress,
there have been 11 recusals in the Supreme Court without any corresponding explanation — not something Alito’s accusers deem worthy of mentioning.
Instead, Stern claims that “Kagan was never the problem” (she’s even turned down free bagels from her high school friends, she’s so virtuous.) Her explanation for recusal was simply “(prior government employment),” which, explains Stern, is “a shorter way of saying that she participated in the proceedings while serving as solicitor general.”
Kagan should have eaten those bagels and recused herself from NFIB v. Sebelius and King v. Burwell, cases revolving around a national reform law and mandate for which her office had
“mounted an early and aggressive ... to the individual insurance mandate,” according to The Hill. That was more than enough for her to sit those cases out. But since the Obama administration refused to turn over all emails related to the case, we can also
strongly suspect Kagan had personally lent her expertise in anticipation of legal challenges.
As usual, it’s all just Calvinball. For instance, while Alito’s recusal over a disclosed stock is a big ethical problem, Sonia Sotomayor
failing to recuse herself from multiple cases involving a publisher who paid her over $3 million while she was on the court is just fine.
For the record, justices shouldn’t be compelled to automatically bow out of cases involving companies or industries they’ve dealt with unless there is a genuine and clear conflict of interest. None of these attacks have ever produced a single case in which an originalist justice has strayed from their beliefs to help a company, person, or industry, much less themselves. Then again, the ugly irony of the Democrat’s attacks is that their anger is fueled by the principled judicial philosophy of certain justices.
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David Harsanyi is a senior editor at The Federalist, a nationally syndicated columnist, a Happy Warrior columnist at National Review, and author of five books—the most recent, Eurotrash: Why America Must Reject the Failed Ideas of a Dying Continent. Follow him on Twitter, @davidharsanyi. 
