During Justice Samuel Alito’s confirmation hearings for the Supreme Court in January 2006, he committed to holding himself to an even higher standard for recusals than the judicial code of conduct required. He also represented himself as an impartial judge who would have no ideological agenda and repeatedly asserted that the president is not above the law. 

As the Supreme Court considers high stakes cases about presidential immunity and accountability for the January 6th insurrection, Alito has attracted scrutiny for failing to recuse from those cases despite flying flags associated with the insurrection and the “Stop the Steal” movement at his houses. Despite calls from members of Congress, CREW and several other groups to recuse, Alito has refused.

Alito’s commitments to impartiality and abiding by the highest ethical standards during his confirmation hearings stand at odds with his failure to recuse despite the clear conflicts at play in cases related to January 6th and the 2020 election.


Alito faced scrutiny for his initial failure to recuse from a case against the financial company Vanguard while serving on the U.S. Court of Appeals for the Third Circuit, despite holding at least $390,000 in Vanguard funds. Alito maintained that his failure to recuse was a mistake that he later remedied, and that ruling in the case did not actually violate judicial ethics rules. 

Alito repeatedly stressed that he would recuse from cases where the ethics code required him to do so, despite the broad duty for Supreme Court justices to hear cases. When asked about the case by Senator Orrin Hatch, Alito said, “I not only complied with the ethical rules that are binding on Federal judges—and they’re very strict—but also that I did what I have tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised.”

When pressed further by Senator Russ Feingold, Alito said he would not commit to recusing from all Vanguard cases going forward, but, “I will very strictly comply with the ethical obligations that apply to Supreme Court Justices.” 

Later, during a back and forth with Senator Edward Kennedy about his Vanguard mutual fund not being on his recusal list, Alito said: “I am one of those judges that you described who take recusals very, very seriously.” 


While Alito’s insurrection-related flags clearly require his recusal from all January 6th related cases—should he continue to fail to recuse from the Trump immunity case, his comments during his confirmation hearing may come back to haunt him if he chooses to side with Trump.

During questioning by Senator Patrick Leahy about whether presidents can authorize the use of torture, Alito said, “I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law, and that includes the president and it includes the Supreme Court.” And when asked by Senator Chuck Grassley whether he believed that the President of the United States is above the law and the Constitution, he said: “Nobody in this country is above the law, and that includes the president.”


As a member of the conservative Federalist Society nominated to replace retiring Justice Sandra Day O’Connor, a swing vote on the Court, Alito faced questions about whether he would be an ideological justice. During his closing comments on the first day of his confirmation hearing, Alito said: “A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case.” 

On the second day of his confirmation hearing, Senator Jeff Sessions asked Alito, “And if you take the definition of activism as an action by a judge who allows their personal, political, or social, or moral values to override their commitment to the law, do you believe that a judge who is conservative can be an activist just as easily as one who is liberal?” In response, Alito said, “Yes, I do. I don’t think that activism has anything to do with being a liberal or conservative. It has to do with not following the proper judicial role. It has to do with a judge’s substituting his or her own views for what the Constitution means and for what the laws mean.”

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