Justice Alito has long been a favorite target of the Left, and the lame attacks on him reached a new low last week with a Daily Beast hit piece invoking the work of the justice’s son, Philip. The younger Alito received a detail last year from his position as an assistant U.S. Attorney in the Eastern District of Virginia to a position as attorney-advisor in the Treasury Department.
The Daily Beast and others insinuated that Justice Alito should have recused himself from the tariff case decided by the Court in Learning Resources v. Trump because the Treasury Department was a named party in that litigation. The disqualification statute requires a federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Here there is zero basis to smear the Alitos with a conflict of interest.
A Treasury Department spokesperson stated, “As a matter of both professional and personal judgment, Phil does not counsel on any matters reasonably expected before the Supreme Court.” A Supreme Court spokesperson added that “he has not worked on any matter related to the tariffs imposed by the federal government.” No one has presented evidence to rebut these statements, and the critics similarly do not bother to acknowledge the operative standard and practice regarding the family members of justices.
As Ed Whelan pointed out, in 1993, seven justices of the Supreme Court who had close relatives “who are or may become practicing attorneys” issued a joint statement setting out how the disqualification statute applied to them. The statement was dedicated to addressing a covered attorney’s “partnership in the firm appearing before us, or his or her previous work as a lawyer on a case that later comes before us.” Even that connection to Supreme Court litigation, the joint statement explained, would “not automatically trigger” recusal. More would be required—“some special factor,” such as “the relative’s functioning as lead counsel below” or “the amount of the relative’s compensation” possibly being “substantially affected by the outcome here.” (The latter factor would typically apply to partners whose firms appear before the Court.) Philip Alito had no involvement with the tariff litigation, and his situation is even more removed from a recusal obligation than that of a justice’s close relative who had participated in an earlier stage of litigation before the Court, or who was a partner whose compensation was at issue.
The shoddiness of this attack is underscored by the Daily Beast’s denigration of Philip Alito as a “nepo baby” and quotation of an unnamed source who said he “got that position because of who he is.” Just imagine liberal journalists saying the same about Thurgood Marshall, Jr., who served as President Clinton’s White House cabinet secretary. For that matter, Eugene Scalia served as secretary of labor in the first Trump administration, and while liberals attacked his positions, few attacks had anything to do with who his father was. Philip Alito’s detail is a modest position by comparison. What makes his denigration especially galling is the high esteem in which he is held by colleagues. Mike Fragoso, the former Senate Judiciary Committee chief counsel for nominations and constitutional law, called Alito, whom he saw in action as general counsel to the Senate Judiciary Antitrust Subcommittee under Senator Mike Lee, “one of the best lawyers I worked with in the Senate.”
What’s happening here is obvious: This latest attack is nothing but another smear campaign against the Alitos’ good name. The Left continues to defame and harass Justice Alito and his family because he refuses to push their radical agenda from the bench.