Justice Samuel Alito’s son Philip recently left private practice to become one of the staff counsel to the permanent subcommittee on investigations of the Senate Committee on Homeland Security and Governmental Affairs, working for subcommittee chairman Sen. Rob Portman (R-OH). Tony Mauro reports the news (registered readers only) at the National Law Journal, and rings up some experts on judicial ethics to explore the question whether this will raise any recusal issues for Justice Alito. The consensus answer is, not really.
But Mauro, for some reason, also decided to call Norman Ornstein at the American Enterprise Institute, who knows nothing in particular about judicial ethics, and not much more about the Supreme Court. Mauro’s reason for calling him was that he has published a good deal about Congress over the years. But here is the rather ridiculous result of Mauro’s using Ornstein as a source for this story:
[Philip] Alito’s move drew criticism from American Enterprise Institute scholar Norman Ornstein, who tracks Congress and U.S. politics. “For a court that is struggling for tangible reasons not to be viewed as partisan like every other institution in Washington, I wish it was not so,” Ornstein said.
The Senate subcommittee on investigations, Ornstein said, “has a pretty long history, mostly distinguished, as the main investigative body of Congress.” With the new Republican-led Congress scrutinizing a Democratic president, Ornstein said the subcommittee may become a partisan weapon.
“We shouldn’t condemn the children of public officials to a life of deep constraint,” Ornstein said. “But given everything else, given that Justice Alito is consistently partisan, it’s just another little chink out of the court’s armor.”
Let’s review this episode in self-embarrassment—Ornstein’s, that is. The only bit of actual knowledge he contributes to Mauro’s story is the fact that the subcommittee for which the younger Alito now works has a “mostly distinguished” history. Ornstein adds, in Mauro’s paraphrase, the worry that the subcommittee “may become a partisan weapon.” Sheer speculation, of course, based on nothing other than the observation that the Congress is in Republican hands and the White House occupied by a Democrat. If Norm Ornstein has ever worried about a committee behaving as a “partisan” when the Congress is Democratic and the president a Republican, I am unaware of it.
As for the rest of Ornstein’s observations, well, what on earth is he talking about? He says the Supreme Court “is struggling . . . not be viewed as partisan”—again a worry that only runs in one direction in Ornstein’s world, where liberal justices are never criticized. But he “wish[es] it was not so,” the “it” evidently being Philip Alito’s new job. It’s a “little chink out of the court’s armor,” he avers, for the son to take a job on the Hill while the father is a justice of the Supreme Court. But how come? Does Ornstein imagine that Philip Alito, by virtue of his employment on the Hill, will acquire some influence over his father’s judicial decision-making? Moreover, an influence he did not previously have, um, because, you know, he probably talks to his dad? The question answers itself—with a guffaw. I expect that as in most such family relationships, the influence runs rather more strongly in the other direction. But both Alitos are grown-ups and lawyers, who know perfectly well what is appropriate for them to discuss.
It goes without saying, for Ornstein, that “Justice Alito is consistently partisan”—but he had to say it, quite gratuitously, and it reveals a great deal more about Ornstein than about Alito. What this actually means is “Justice Alito regularly votes in ways that displease me.” The phrase “consistently partisan” is the sort of casual slander regularly employed by ideologues who cannot view the work of the Supreme Court except through a result-oriented political prism. That one cannot even imagine Ornstein saying something like this about Justice Ginsburg, whose shenanigans of late have earned her the moniker “Notorious,” is all you need to know.