A Scourge Against Justice

[TheVat]

report from something called "NOTUS", whatever that is.

Welcome to NOTUS

www.notus.org

If someone posts links and I want to know their provenance then I open them.

 

[exchemist]

Welcome to NOTUS

www.notus.org

If someone posts links and I want to know their provenance then I open them.

Here is Wiki’s description of NOTUS. It appears to be, or is aspiring to be, a serious mainstream journal.

 

[Tiassa]

To Reiterate & Clarify (Notes on the Obvious)

Compared to all else it's really hard to figure an alternative explanation for why Treasury would attempt this sort of stunt. It's not even a question of risking an appearance of impropriety, but an inevitable impropriety, so if we are to wonder why Phil Alito, there are very few reasons why.

Now, for instance, maybe one doesn't understand the idea of an "appearance of impropriety", but it's kind of important to the American judiciary, so skipping past it isn't really an option. To be clear, it's not just that judges are supposed to avoid impropriety, they are also expected to avoid the appearance of impropriety. Phil Alito's presence at Treasury during litigation before the Supreme Court is an appearance of impropriety; the failure of both Treasury and Justice Alito to acknowledge that conflict of interest is an actual impropriety. This is not something any reasonable analysis of the situation would ignore.

We might consider a source who told a reporter "There's no doubt" Alito was hired "because of who he is", and as Parmalee↑ put it: "The source expressed an opinion, to which they are entitled. Do you have evidence to support, or a strong reason to believe, that Mr Alito did not get the position because of who his father is?"

It's a reasonable question: If Alito was hired for his general merit, then Treasury would have observed the appearance of conflict of interest and Justice Alito would respond appropriately. They did not. As I said, it's not even a question of risking an appearance of impropriety, but an inevitable impropriety. Treasury chose an improper course and tried to hide it.

There are very few reasons under the sun why Treasury would choose this impropriety. And given that it is the sort of impropriety nobody else could get them, yes, it's pretty obvious Phil Alito was hired because of who he is.

And inasmuch as we don't really need an anonymous source to tell us the obvious, it's also important to remember how journalism works: The source can tell us what other reasons Treasury might have for hiring Phil Alito to its office of general counsel, but that's the thing, compared to the inevitability of impropriety, there are very few reasons, and those are winnowed by the fact of attempting to hide the fact, as well as and especially the very particular impropriety Phil Alito brings to the Department.

 

[TheVat]

One would expect that an agency, on hiring the son of a scotus justice for legal work, would issue a public acknowledgement of the hire and then state unambiguously that the new hire would not be consulting on any litigation going before scotus. To fail to do this and hide the new hire is, as Tiassa patiently explains, an inevitable impropriety.

Unless someone is arguing that four Treasury staff have engaged in a hoax, and Phil Alito doesn't work there, I'm not sure how one could argue that there is no impropriety and a blatant one at that - indeed, a serious violation of professional ethics.

 

[James R]

Tiassa:

Compared to all else it's really hard to figure an alternative explanation for why Treasury would attempt this sort of stunt.

Which sort of stunt?

Now, for instance, maybe one doesn't understand the idea of an "appearance of impropriety", but it's kind of important to the American judiciary, so skipping past it isn't really an option.

What does the judiciary have to do with the Treasury department?

Phil Alito's presence at Treasury during litigation before the Supreme Court is an appearance of impropriety...

Was this appearance of impropriety raised before the Court? What was the litigation? Who were the parties? Did any of the lawyers raise the issue of potential conflict of interest? If so, what happened? If not, why not?

It's a reasonable question: If Alito was hired for his general merit, then Treasury would have observed the appearance of conflict of interest and Justice Alito would respond appropriately.

Justice Alito doesn't work for the Treasury. Are you talking about a case before the Supreme Court?

Treasury chose an improper course and tried to hide it.

Please explain what they tried to hide, how they tried to hide it and why it was an "improper course".

Who, specifically, was doing the "trying to hide"?

There are very few reasons under the sun why Treasury would choose this impropriety.

What are those very few reasons?

Look, if you're going to make allegations, at least be specific about them. Vaguely throwing shade mostly sounds like whining for the sake of it.

And given that it is the sort of impropriety nobody else could get them, yes, it's pretty obvious Phil Alito was hired because of who he is.

What, exactly, are you alleging? Be specific.

And inasmuch as we don't really need an anonymous source to tell us the obvious...

Apparently, you did need about 6 anonymous sources to lead you to whatever these conclusions you have come to are. If you had better sources, why would you quote from a useless article that was, to all intents and purposes, sourceless?

... it's also important to remember how journalism works...

Yes. Usually, journalists have sources.

The source can tell us what other reasons Treasury might have for hiring Phil Alito to its office of general counsel...

Great! To which source are you referring? Be specific.

One would expect that an agency, on hiring the son of a scotus justice for legal work, would issue a public acknowledgement of the hire...

Is that established practice for "agencies"? They put out press releases when they hire the children of sitting judges, do they?

... and then state unambiguously that the new hire would not be consulting on any litigation going before scotus.

Is that also established practice?

To fail to do this and hide the new hire is, as Tiassa patiently explains, an inevitable impropriety.

I'm not convinced, yet.

TheVat:

Unless someone is arguing that four Treasury staff have engaged in a hoax...

Is somebody arguing that? Who is arguing it?

... and Phil Alito doesn't work there...

Has anybody bothered to ask the Treasury whether Phil Alito is working there? Surely any journalist who was worth his salt would be able to pick up a phone and make a simple inquiry.

Do we really need to appeal to anonymous sources and a rumour mill to find out who works for Treasury?

I'm not sure how one could argue that there is no impropriety and a blatant one at that - indeed, a serious violation of professional ethics.

The default position would be "no impropriety". If you - or anybody else - wants to allege impropriety, the onus is on you to make the case.

 

[exchemist]

One would expect that an agency, on hiring the son of a scotus justice for legal work, would issue a public acknowledgement of the hire and then state unambiguously that the new hire would not be consulting on any litigation going before scotus. To fail to do this and hide the new hire is, as Tiassa patiently explains, an inevitable impropriety.

Unless someone is arguing that four Treasury staff have engaged in a hoax, and Phil Alito doesn't work there, I'm not sure how one could argue that there is no impropriety and a blatant one at that - indeed, a serious violation of professional ethics.

I’m not sure about that. It must be commonplace for the children of judges to enter the legal profession and for some to end up working for the state in some capacity. I can’t see why there should be anything suspect in that, nor any reason to declare it per se.

Surely all that is needed in such cases is for the judge to recuse him or herself from any cases that involve their offspring, whether personally or professionally. Hard for the offspring to do when they have a parent presiding in an appellate court, since their involvement would generally take place before any appeal procedure could be foreseen.

But I admit I have not followed the details of this particular case.

 

[Sarkus]

I’m not sure about that. It must be commonplace for the children of judges to enter the legal profession and for some to end up working for the state in some capacity. I can’t see why there should be anything suspect in that, nor any reason to declare it per se.

The reason to declare it would surely be to offer transparency, so as to avoid any possible appearance of impropriety? I.e. at the start, the judge/justice can quickly say that it should be known that his son works at the organisation of the plaintiff/defendent etc, but that they in no way influence or benefit from the proceedings etc.
Unfortunately with the SCOTUS there is no obligation to be transparent. Even though one might think that the matter of public confidence in the SCOTUS would influence how one acts, i.e. to support that confidence through transparency, there is no obligation, and recusal is pretty much left to each Justice to determine for themselves. They don't have to justify their decision to anyone, even when directly asked.
As I understand it, in the reported story, no one asked directly because no one even knew that Philip Alito (or "Phil" as some source of indeterminate credibility says he likes to introduce himself as) worked at the Treasury, as counsel and policy adviser.

Surely all that is needed in such cases is for the judge to recuse him or herself from any cases that involve their offspring, whether personally or professionally. Hard for the offspring to do when they have a parent presiding in an appellate court, since their involvement would generally take place before any appeal procedure could be foreseen.

Noone would expect the offspring to do anything. Any onus would fall squarely on the Justice to act as they deem appropriate according to their ethics. Unfortunately, with the SCOTUS, there is no standard of ethics by which they are obligated. There is no obligation to act in a certain way, to even acknowledge a situation that might raise ethical questions.
And that, in a large part, is the issue here: there is a gap, possibly wider with this SCOTUS than with previous, between the ethical standards that the public might wish to hold them to, and the standards that they actually adhere to.
There is no breaking of any laws here, no obligations that have been broken. Just disappointment by those that would hope the highest court in the USA would adhere to higher standards than they do, let alone to higher standards than others, and to a transparency that would help instil public confidence in that institution.

Ultimately, the optics don't look good here, it seems, whether or not there has been any actual impropriety.

And then there's the question of whether the Treasury dept deliberately tried to keep Philip Alito's employment, and involvement, out of the public eye. If they did, why? One surely doesn't try to keep things hidden unless one has something to hide? But, again, it's mostly (at this stage - i.e. absent any evidence of actual wrongdoing) a matter of optics.

That's my take, at least, cutting through any (deliberate or otherwise) obfuscation.

 

[exchemist]

The reason to declare it would surely be to offer transparency, so as to avoid any possible appearance of impropriety? I.e. at the start, the judge/justice can quickly say that it should be known that his son works at the organisation of the plaintiff/defendent etc, but that they in no way influence or benefit from the proceedings etc.
Unfortunately with the SCOTUS there is no obligation to be transparent. Even though one might think that the matter of public confidence in the SCOTUS would influence how one acts, i.e. to support that confidence through transparency, there is no obligation, and recusal is pretty much left to each Justice to determine for themselves. They don't have to justify their decision to anyone, even when directly asked.
As I understand it, in the reported story, no one asked directly because no one even knew that Philip Alito (or "Phil" as some source of indeterminate credibility says he likes to introduce himself as) worked at the Treasury, as counsel and policy adviser.

Noone would expect the offspring to do anything. Any onus would fall squarely on the Justice to act as they deem appropriate according to their ethics. Unfortunately, with the SCOTUS, there is no standard of ethics by which they are obligated. There is no obligation to act in a certain way, to even acknowledge a situation that might raise ethical questions.
And that, in a large part, is the issue here: there is a gap, possibly wider with this SCOTUS than with previous, between the ethical standards that the public might wish to hold them to, and the standards that they actually adhere to.
There is no breaking of any laws here, no obligations that have been broken. Just disappointment by those that would hope the highest court in the USA would adhere to higher standards than they do, let alone to higher standards than others, and to a transparency that would help instil public confidence in that institution.

Ultimately, the optics don't look good here, it seems, whether or not there has been any actual impropriety.

And then there's the question of whether the Treasury dept deliberately tried to keep Philip Alito's employment, and involvement, out of the public eye. If they did, why? One surely doesn't try to keep things hidden unless one has something to hide? But, again, it's mostly (at this stage - i.e. absent any evidence of actual wrongdoing) a matter of optics.

That's my take, at least, cutting through any (deliberate or otherwise) obfuscation.

OK thanks for the clarification. But is there, then, any suggestion that Alito fils was involved in a matter that has come before the Supreme Court where Alito père was presiding? After all, the US Treasury is an enormous department of government and no doubt its legal department has hundreds of lawyers working in it, so I would not have thought the mere fact that he worked in it would on its own be something requiring mention.

 

[Sarkus]

Nothing requires mentioning, as in obligation.
As to how close "Phil" got to matters before the court, the head of the Treasury Dept Scott Bessent - he of the smuggest and condescending smile imaginable (I await any suggestions of someone who exceeds him in this regard) - has claimed that the Treasure Dept follows all legal and ethical guidelines, and he expects Alito Snr. does the same. The Treasury dept have claimed that Philip Alito's portfolio is broad within the dept, that he does counsel on policy but, so they claim, not on any matters reasonably expected to go before the Supreme court.
So there would appear to be no actual impropriety (if everyone is to be believed) but that does not remove that there was at least an appearance of impropriety from the outset, one that was failed to be acknowledged by the court, one that Treasury seemed to be happy to keep quiet (if not actively keep hidden), all of which, taken as a whole, does nothing but weaken the public confidence in the SCOTUS. And as such would seem to be itself an act of impropriety, if only the Supreme Court would hold itself to ethical standards that are worthy of the importance of the institution.

So, in summary, it's not necessarily the substance but rather the process that was followed (or not followed in this case).

 

[TheVat]

Noone would expect the offspring to do anything. Any onus would fall squarely on the Justice to act as they deem appropriate according to their ethics. Unfortunately, with the SCOTUS, there is no standard of ethics by which they are obligated. There is no obligation to act in a certain way, to even acknowledge a situation that might raise ethical questions.

Due to time zones, I am late to getting back to this, and I think y'all have sorted through some of this. Yes, it's Alito's job to recuse himself as needed. Though it doesn't have the force of law, CJ Roberts did issue a formal written code of professional ethics for his Court, I think in part to appease some of the public outcry with earlier conflicts of interest. It was a small bandaid for a large wound, as this discussion is making clear. I hardly need argue the importance of judicial recusal for the integrity of the nations highest court.

I think, if I'm understanding the impropriety argument that much turns on the term "general counsel." If Phil is such, then he would likely have the highest profile cases go across his desk, e.g. SCOTUS appeals, which means that Justice Alito père would at minimum need to do a good faith inquiry as to son's weighing in on any case before SCOTUS, with all transparency. As you and others note, it's the lack of transparency which is an ongoing source of harm to the Court.