There is no hole in Raskin’s legal reasoning, as he presented it in today’s New York Times. The law is very clear, whatever a whining Alito might have to say about his wife’s indomitable flag flying habits and his own complete and obvious objectivity. We can only hope the remainder of the MAGA caucus on our highest court heed binding federal law, the Constitution, and their own precedent and force their two openly pro-insurrection colleagues to obey the law and take themselves off of pending cases that will decide the fate of insurrectionists, and quite possibly our Republic.

The only weakness in Raskin’s impeccable, beautifully written argument is that the action irrefutably required by the Constitution, explicit federal statute and Supreme Court precedent, depends on the transactional ethics of “justices” from an extremist judicial fraternity actually following the law to enforce required ethics. Several of them (Kavanaugh, Roberts — rewarded by Dubya Bush for his excellent work on the case that made him president — and Coney Barrett) were partisan actors, sent to Florida in the days leading up to Bush v. Gore, a highly dubious legal ruling decided by at least two judges (The Black Klansman being one of them) who had an ethical obligation to recuse themselves from that nakedly partisan case. The Federalist Six are lifetime political appointees who have many times over revealed their lack of integrity and their fraternity’s united contempt for precedent, norms and the rule of law.

Here’s a taste of Jamie Raskin’s op ed in today’s NY Times:

In one key 5-to-3 Supreme Court case from 2016, Williams v. Pennsylvania, Justice Anthony Kennedy explained why judicial bias is a defect of constitutional magnitude and offered specific objective standards for identifying it. Significantly, Justices Alito and Thomas dissented from the majority’s ruling.

The case concerned the bias of the chief justice of Pennsylvania, who had been involved as a prosecutor on the state’s side in an appellate death penalty case that was before him. Justice Kennedy found that the judge’s refusal to recuse himself when asked to do so violated due process. Justice Kennedy’s authoritative opinion on recusal illuminates three critical aspects of the current controversy.

First, Justice Kennedy found that the standard for recusal must be objective because it is impossible to rely on the affected judge’s introspection and subjective interpretations. The court’s objective standard requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable,” citing an earlier case. “This objective risk of bias,” according to Justice Kennedy, “is reflected in the due process maxim that ‘no man can be a judge in his own case.’” A judge or justice can be convinced of his or her own impartiality but also completely missing what other people are seeing.

Second, the Williams majority endorsed the American Bar Association’s Model Code of Judicial Conduct as an appropriate articulation of the Madisonian standard that “no man can be a judge in his own cause.” Model Code Rule 2.11 on judicial disqualification says that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” This includes, illustratively, cases in which the judge “has a personal bias or prejudice concerning a party,” a married judge knows that “the judge’s spouse” is “a person who has more than a de minimis interest that could be substantially affected by the proceeding” or the judge “has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particular result.” These model code illustrations ring a lot of bells at this moment.

Third and most important, Justice Kennedy found for the court that the failure of an objectively biased judge to recuse him- or herself is not “harmless error” just because the biased judge’s vote is not apparently determinative in the vote of a panel of judges. A biased judge contaminates the proceeding not just by the casting and tabulation of his or her own vote but by participating in the body’s collective deliberations and affecting, even subtly, other judges’ perceptions of the case.

On the day when we remember our valiant dead, killed in wars, it is worth recalling what the now old men (my father, drafted when he turned 18, would be 100 next week) who fought and died in great numbers to defeat Nazism died for.   The freedom to have a voice in government, no matter how small, and to sometimes see justice done in a democracy, rather than the terrifying absence of all fairness in a totalitarian state ruled by obedience to the will of one enraged psychopath bent on revenge.

Below is a clip of Sam Alito, one of our nine unappealable lifetime rulers on what is lawful in the US, whining about a made up theoretical scenario in which a president, after committing crimes while in office, will be compelled, after losing a “close and hotly contested” election, (say by a razor thin 7,000,000 vote margin as the ex-president now making the immunity claim did) to pardon himself, or foment violence to stay in office, if absolute lifetime presidential immunity for criminality while in office is not preemptively granted.  You know, since history shows that every president before Trump was immediately indicted for crimes, by his political enemies, after leaving office… while somehow all forgetting to invoke their absolute constitutional right not to be indicted.

This kind of floridly assholic line of reasoning/questioning can only be posed by a judicial genius who is also a fucking Nazi.

And when I say Nazi, recall that this was a party of ambitious power-hungry climbers willing to do anything to advance the Nazi cause.  They were not all-in on mass murder, until it was required of them by their unquestioning obedience to the will of their Führer, which was their only principle, outside of seeking their own power.  The 2020 GOP platform had one plank, whatever the Big Guy wants, we support it.  Remember also, it took the Nazis several years in power, after years of violence, rhetorical and physical, to come to power, before they started committing the serious crimes and wholesale murder they are now known for. 

A guy like Alito is a Nazi because he openly demonstrates his partisan willingness to further the merciless party line, whatever it might be, and enhance the power of his sponsors and fellow extremists, no matter what.  He does this over and over again, in his judicial opinions and angry public statements, as when brazenly lying on FOX about why his Stop the Steal flags were flying outside two of his homes. Some commie called his wife the c word!   She had every right to fly the flag of insurrection over their house!

Check him out in the absurd presidential absolute blanket immunity from criminal prosecution hearing (that, but for several appointees by a criminal defendant, should have been held, and decided, if the ridiculous claim needed to be heard at all, in December 2023, as DOJ requested).

Icon of the far right Justice Antonin Scalia, started this “fuck you, ethics” trend when he refused to recuse himself from a case involving his friend and hunting companion, the aptly named Dick Cheney. When asked about the appearance of impropriety in traveling with Vice President Cheney on Air Force Two for some kind of holiday playtime while he sat on a pending case involving Cheney’s secret Energy Task Force meeting with Enron execs and others to deregulate energy on the West Coast, he told the reporter “I think it’s a sad day in America when people question the integrity of Supreme Court justices.”

The reporter was young, and flustered, and worked for a large corporation, an inherently conservative artificial person. She was apparently unable to follow with “I agree with you that it is a sad day when Americans don’t trust the integrity of a Supreme Court justice. However, that was not responsive to my question. So again, how does this clear appearance of impropriety not require you to recuse yourself from a case involving a powerful friend you vacation with?” If it had been me, I like to think I’d have added “bitch” at the end of that rephrasing of my clear question.

However, the point was made by the arrogant Scalia. A justice can simply say “fuck you for fucking questioning my integrity you fucking commie fuck” and that is the end of any discussion of the appearance of impropriety. Enraged extremist Sam Alito can wear a swastika under his robes, next to his Appeal to Heaven t-shirt, while fingering his authoritative compendium of witch burning anti-abortion jurists, compromised Clarence “Black Klansman” Thomas can seethe publicly about how viciously unfair it is that he’s questioned about undisclosed generous gifts from close billionaire friends who sidled up to him once he was on the Supreme Court, not to mention his rabid, powerful activist wife’s full-throated support of the Stolen Election lie. John Roberts’s wife can make millions referring rightwing lawyers to organizations who bring cases before her husband. Kavanuagh’s huge credit card debt can magically disappear overnight, Gorsuch can suddenly easily sell a property he’d had on the market for years, etc.

These clearly partisan, ideologically pure, anti-democratic, fanatical products of a doctrinaire rightwing legal fraternity are completely out of control, and John Roberts is respectfully silent as he and his five activist colleagues brazen out this crisis of public confidence, using the Scalia method, as he votes with them to rule that partisan gerrymandering is completely legal, unless those drawing the maps are wearing Ku Klux Klan hoods and publicly calling for the mass lynching of Blacks as they remove Black voters from a partisan district to protect the election prospects of one of their own.

This, of course, is 11 years after these anti-democratic creeps neutered the unanimously reauthorized (98-0 in the Senate) Voting Rights Act and later ruled that partisan gerrymandering is a political question that the court can’t comment on, unless, of course, as they clarified recently, it’s a bunch of n-words trying to bring a case previously covered by the Voting Rights Act that henceforth will be impossible to win, under new Supreme Court precedent that shifts the burden to them to prove the merely partisan map was also drawn with unmistakable racist intent.

In overturning two federal courts in South Carolina, Alito, writing for the six, created a new presumption of legislative non-racism that must be overcome by Black plaintiffs, no matter what the lower courts’ fact finding showed, no matter that 62% of Blacks were moved out of Nancy Mace’s district and into Representative Jim Clyburn’s (D-SC) district. Alito needs at least a one vote MAGA majority in the House to avoid a bill of impeachment against him getting to the floor, obviously. Every partisan drawn gerrymandered district counts! Fuck these fucking Nazi putos.

Biden in term two must have Congress expand the court and add four or five moderate, non-Federalist Society “ideological” diehards, to the Supreme Court which must also adopt a binding code of ethics. I think Merrick Garland should be one of the added justices, he will make an excellent, highly principled justice, even if he has not been bold in fighting fascism as our nation’s top law enforcement official. Hopefully it’s not too late for democracy in our country teetering on the brink of Klan/Nazi/White Christian Nationalist rule as a powerful minority uses despair, hatred and fear to permanently cement its hold on absolute power.

In the meantime, no more strongly worded letters to bland, smug corporatist John Roberts, Senator Durbin. Subpoena a few of these openly contemptuous fascists, starting with Samuel “My wife doesn’t like being called a cunt” Alito. Do it Tuesday.