Samuel Alito is the latest Supreme Court justice to have been found in flagrant violation of federal ethics rules. In 2008, ProPublica reports, Alito accepted a private-plane flight and a free trip to a luxury fishing lodge from conservative donor Paul Singer.
In the previous cases, involving conservative donor Harlan Crow’s yearslong patronage of Clarence Thomas, conservative defenses placed enormous weight on the point that Crow had no business before the Supreme Court. (National Review, for instance: “After an exhaustive search, Bloomberg News dug up just one case that reached the Court and was tangentially related to Crow — a case in which he owned a minority stake in one of the defendant companies but that the Court didn’t take and in which nobody wrote an opinion.”)
This rationalization conveniently ignored the larger problem created by justices relying on the good graces of political donors to maintain their lifestyle. But in Alito’s case, even this defense does not pertain, because Singer did have business before the Court: a high-profile case involving his firm’s fight over Argentinian debt.
Alito has no serious defense in this case except to admit error and promise not to repeat. Instead, he mounts a completely unserious defense.
Alito hastily wrote an op-ed in the Wall Street Journal (the conservative newspaper whose editorial page has displayed advance knowledge of the Court’s abortion ruling) that preempted ProPublica’s story. Alito’s argument strings together a series of superficial, contradictory, and unpersuasive deflections.
First, on his failure to disclose his acceptance of lucrative gifts from Singer, Alito leans on the exemption for personal hospitality. The purpose of this exemption is so that federal employees don’t have to disclose the cost of the ingredients every time they are having dinner at a friend’s house. “Until a few months ago,” he writes, “the instructions for completing a Financial Disclosure Report told judges that “[p]ersonal hospitality need not be reported,” and “hospitality” was defined to include “hospitality extended for a non-business purpose by one, not a corporation or organization … on property or facilities owned by [a] person.”
But since the personal-hospitality defense is designed to exclude personal friendships, it makes his failure to recuse himself in Singer’s Supreme Court case even worse. So, in the section explaining why it was okay for him not to recuse himself from Singer’s Supreme Court case, Alito writes, “My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions, all of which (with the exception of small talk during a fishing trip 15 years ago) consisted of brief and casual comments at events attended by large groups.”
In other words, Singer was a close enough friend that Alito can accept
his personal hospitality without disclosure. But he also barely knew the guy, so he isn’t required to recuse himself from Singer’s legal business.
If the personal-hospitality loophole could be extended to people you met one time — the time that person was lavishing you with expensive gifts — it would swallow up the bribery rules completely. I suppose many federal employees would be capable of forming a deep personal friendship with an individual meeting with them for the purpose of bestowing expensive favors.
The personal-hospitality exemption, in any case, does not apply to private-plane travel. As ProPublica reports, “the law clearly requires disclosure for gifts of private jet flights, according to seven ethics law experts, and Alito appears to have violated it.”
So, perhaps recognizing the weakness of this defense, Alito layers on a kind of fallback rationale for accepting a private trip from Singer. “As for the flight, Mr. Singer and others had already made arrangements to fly to Alaska when I was invited shortly before the event,” he writes, “and I was asked whether I would like to fly there in a seat that, as far as I am aware, would have otherwise been vacant.”
In other words, he was not getting a free trip on a private jet unless the plane was full and somebody else had to be thrown off the flight. Alito was merely occupying a vacant seat on a flight that was going to occur anyway. By the same logic, Singer could leave an envelope filled with cash on the table and walk away, and it wouldn’t be a bribe for Alito to take it, because otherwise the money was going to be lost.
Finally, Alito insists it was fine for him not to recuse himself in Singer’s case, because he didn’t know Singer was involved. Alito’s op-ed treats Singer’s involvement as the sort of obscure detail his staff could not be expected to turn up. “It would be utterly impossible for my staff or any other Supreme Court employees to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity named as a party in the thousands of cases that are brought to us each year,” he writes.
In fact, Singer’s involvement in the Argentinian debt case was well-known at the time. News coverage treated Singer as a leading player in the case. “The investors — including the hedge-fund tycoon Paul E. Singer — sued Argentina seeking payment for $1.3 billion relating to bonds that the country defaulted on in 2001,” reported the New York Times in the third sentence of its news story. “NML was founded by U.S. hedge-fund billionaire Paul Singer, who has a history of buying distressed debt on the cheap and pursuing payment at face value,” reported the Wall Street Journal, Alito’s favorite paper.
Of course, outside this case itself, ProPublica’s reporting hints at the larger scandal of conservative donors becoming financially enmeshed with the justices they sponsor. Alito’s stay at the resort “was provided free of charge by another major donor to the conservative legal movement: Robin Arkley II,” it reports. And Singer’s Supreme Court case “featured an unusual intervention by the Judicial Crisis Network, a group affiliated with Leo known for spending millions on judicial confirmation fights. The group filed a brief supporting Singer, which appears to be the only Supreme Court friend-of-the-court brief in the organization’s history.”
The whole arrangement is highly convenient for the right: The conservative legal movement has seized unassailable control of the Supreme Court and its members are so deeply invested in the goals and worldview of the conservative movement and its donors that the component parts can hardly be separated. The most powerful body in the government happens to be the one that is allowed to follow the most lax ethics requirements.
Most fortunately of all, justices like Alito can rationalize even their most blatant violations with absurd pseudo-legalistic evasions, which he is highly practiced at writing.
