Dems in hot seat for alleged ethics violations over Alito recusal demands

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Justice Alito tells Congress he will not recuse himself from Jan. 6 Trump immunity cases

Fox News correspondent David Spunt reports on the Supreme Court justice’s letter to Congress after an upside-down flag was flying outside his home.

Senate Minority Leader Mitch McConnell, R-Ky., suggested Democratic lawmakers could have incurred ethical violations when they made recusal demands of the Supreme Court after news broke of flags flown at Justice Samuel Alito's homes.

Sens. Richard Blumenthal, D-Conn., and Sheldon Whitehouse, D-R.I., "potentially engaged in unethical professional conduct before the Court," the Republican leader claimed in floor remarks on Wednesday. Both are members of the Senate Judiciary Committee. 

"Three of our colleagues have taken it upon themselves to write to the Chief Justice and demand Justice Alito’s recusal in cases," he explained. "One went so far as to tell the chief that he should strip Justices Alito and [Clarence] Thomas of the ability to write majority opinions unless they recuse from the cases liberals don’t want them hearing."

"This goes beyond the standard disgraceful bullying my Democratic colleagues have perfected," he said.

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Minority Leader Mitch McConnell, R-Ky., center, accused Sens. Richard Blumenthal, D-Conn., right, and Sheldon Whitehouse, D-R.I., of violating ethical standards by communicating privately with the Supreme Court. (Getty Images)

"These senators are telling the chief justice, privately, to change the course of pending litigation," McConnell said, adding that this is "ex-parte communication." He noted that such correspondence goes against the outlined American Bar Association code of conduct. 

This, McConnell said, presents an ethical issue because both Blumenthal and Whitehouse appear to be members of the Supreme Court Bar. Admission to the bar is necessary for any lawyer to argue before the court. Both senators have previously argued cases in front of the Supreme Court prior to their elections to the Senate. 

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Sen. Dick Durbin, right, requested a meeting with Chief Justice John Roberts to ensure that Justice Samuel Alito, left, recuses himself from election-related cases. (Getty Images)

"They are officers of the court and bound by a different set of rules than a mere senator," he explained. 

According to McConnell, the ex-parte communications the senators have engaged in via letters could rise to the level of conduct that is considered "unbecoming" and perhaps subject to discipline. 

"I might suggest to our colleagues that unethical ex-parte communications seeking to change the course of pending litigation is such conduct. And that the Court should take any remedial action it feels to be appropriate," the minority leader said. 

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Democrats have targeted both Justice Samuel Alito and Justice Clarence Thomas, requesting their recusals. (Jacquelyn Martin-Pool/Getty Images)

He further pointed to the larger issue of politicization among attorneys but reiterated that it is solely the jurisdiction of the court to ensure the ethics of those within it. 

"We don’t need to appeal to heaven to fix this problem. Just to the Supreme Court’s power to police the ethical practice of law among the members of its Bar," he said, referencing the phrase featured on a historical flag at Alito's beach home, which read, "appeal to heaven." 

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The Supreme Court building in Washington, D.C. (AP Photo/J. Scott Applewhite, File)

Following several reports on an upside-down flag briefly flown at Alito's Virginia home and the other at his vacation home, Democratic lawmakers promptly called on the conservative justice to recuse himself from cases related to the 2020 election. This comes as the court has yet to rule on former President Trump's claim of immunity in his federal election interference case, and Alito's vote could potentially decide the case one way or another. 

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Among those who made such calls were Senate Judiciary Chairman Dick Durbin, D-Ill., along with Blumenthal and Whitehouse. Durbin and Whitehouse asked for a meeting with Roberts, asking that he ensure Alito's recusal, while Blumenthal asked Roberts in his own letter "not to assign opinions or circuit justiceships to Justices Sam Alito or Clarence Thomas if they decline to recuse themselves from cases relating to January 6th and the ‘Stop the Steal’ movement."

Neither Blumenthal's nor Whitehouse's offices immediately provided comment to Fox News Digital.