‘Investigate now’: Pressure mounts on 'MIA' senator to deal with Alito

Revelations over the past week that U.S. Supreme Court Justice Samuel Alito flew flags associated with the January 6 insurrection and the far-right Christian nationalist movement at not one but two of his homes have drawn tremendous outrage, and heightened demands that Senate Judiciary Chairman Dick Durbin (D-IL) hold hearings on the jurist, and pass legislation to reform the Court.

Chairman Durbin, first elected to Congress in 1982, has focused his attention on ensuring President Joe Biden's judicial nominees are confirmed. Wednesday morning he celebrated confirming 200 judges nominated by President Biden to the federal bench.

Senate Democrats are about to mark a huge milestone: 200 lifetime judges confirmed under President Biden.
As Chair of the Senate Judiciary Committee, I’m immensely proud of this accomplishment. Watch as we mark this moment on the Senate floor. https://t.co/ekcBr70vzw — Senator Dick Durbin (@SenatorDurbin) May 22, 2024

But critics, including legal experts, say the Chairman has done little to reform the Supreme Court or hold the judicial branch to account.

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Durbin did not hold any hearings over Justice Clarence Thomas's numerous alleged ethical violations. Some legal experts say he has not only violated the people's trust and judicial ethics rules, but federal law.

And now, critics say, Chairman Durbin is not responding sufficiently to the Justice Alito scandal.

The Chairman did release a statement on Wednesday after the New York Times bombshell of a second Alito flag, calling for the Justice to "recuse himself immediately from cases related to the 2020 election and the January 6th insurrection."

This incident is yet another example of apparent ethical misconduct by a sitting justice, and it adds to the Court’s ongoing ethical crisis.
Justice Alito must recuse himself immediately from cases related to the 2020 election and the January 6th insurrection. pic.twitter.com/qWL1mvAJAs — Senator Dick Durbin (@SenatorDurbin) May 23, 2024

Critics say that's not enough, recusal is also not enough, and a statement from Durbin doesn't rise to the level of Alito's actions.

Professor of law, election law expert, and Director, Safeguarding Democracy Project Rick Hasen Wednesday did not hold back.

"WTF Justice Alito?" he wrote. "I was uncertain if revelation of first flag merited J Alito's recusal in the first case, but I now believe he must recuse in the Trump immunity and related cases. His impartiality could be reasonably questioned;no blaming it on spouse."

Historian and professor Heather Cox Richardson, responding to Hasen, wrote: "Recuse? He needs to resign."

Justice Alito's flags indicate support for the January 6, 2021 insurrection, suggests University Professor Emeritus at Harvard University, Laurence Tribe, a professor of law and top constitutional scholar who wrote a major textbook on the U.S. Constitution.

In an interview Wednesday he also suggested Justice Alito's actions come close to treason.

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Professor Tribe alleged Justice Alito may have committed impeachable offenses, including “giving aid and comfort to an insurrection against the Constitution of the United States, which is close to treason,” he said in his Wednesday interview on the MeidasTouch Network. He also called for a “serious investigation” by the U.S. Senate into Alito, who “has been contemptuous for quite a while.”

But Tribe also aimed his criticism at the Judiciary Chairman.

"This isn’t just about the insurrection-abetting Sam Alito, it’s about the AWOL Senator Durbin. He has no excuse for not holding hearings about Alito now."

On Tuesday, even before the second Alito flag was discovered, Tribe demanded action.

"I’m sorry, Senator Durbin, you’re MIA on this. You have a solemn responsibility to conduct oversight here. This is deadly serious! Key Senate Democrat doesn't plan to probe Justice Alito over upside-down flag. Excuse me, why the heck not??"

Earlier, on Saturday, Professor Tribe had already been pushing for Durbin to act.

"Talk is cheap. Chairman Dick Durbin needs to do more than call on Alito to recuse himself from the insurrection cases. Durbin needs to step up and use the subpoena power to demand Alito’s appearance and explanation before the Senate Judiciary Committee!"

On Monday, NBC News' Sahil Kapur had reported, "Durbin has NO plans to hold a hearing on Justice Alito. 'I don't think there's much to be gained with a hearing at this point... He should recuse himself from cases involving Trump and his admin.' And if Alito won't? Durbin says no recourse but impeachment—and they aren't there."

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Attorney Dan Coffin, who writes about constitutional issues, disagreeing with Durbin's claim, says there must be an investigation.

"An impeachment hearing should be preceded by an investigative hearing to establish the facts regarding the flag incident, as well as other matters currently known or as developed in an investigative hearing. The public needs to know the facts. Alito likely would refuse to appear, even with a subpoena, and the public needs to know that," he said. "There should also be an investigative hearing regarding Thomas & his wife."

Progressive talk show host Thom Hartmann also blasted Durbin.

"Dick Durbin needs to haul Alito and Thomas before the Senate Judiciary Committee to get to the bottom of their collision with Trump’s attempt to overthrow American democracy. Will he find the courage?"

Adam Cohen, Lawyers for Good Government Vice Chair, Board of Directors on Thursday also took aim at Durbin.

"Dick Durbin is the Senate Judiciary Committee Chair," he began. "He needs to investigate Supreme Court Justices Alito and Thomas-NOW."

"Chief Justice Roberts must testify about the MAGA takeover of the Court-and what he’ll do to stop it," Cohen insisted, warning: "Americans are losing their rights ... This CANNOT continue."

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