Senate Democrats split on next steps after Alito flag flap

Senate Democrats are united in condemning the upside-down U.S. flag flown at Supreme Court Justice Samuel Alito’s home. They’re split, though, on where to go from there.

Judiciary Committee Chair Dick Durbin (D-Ill.), who could greatly influence those next steps by Democrats, said his panel wasn’t prepared to hold a hearing on the matter, after the justice told The New York Times his wife briefly flew the flag amid a dispute with neighbors without his knowledge.

But Durbin and his Democratic colleagues were unequivocal that the episode — involving a symbol used by supporters of former President Donald Trump in making false claims about the 2020 election won by President Joe Biden — underscored the need for Supreme Court ethics reform and the need for Alito to recuse himself.

“I don't think there's much to be gained with a hearing at this point,” Durbin, the chamber’s No. 2 Democrat, said Monday. “I think he should recuse himself from cases involving Trump and his administration.”

Not all Democrats feel that way about a hearing, though. Sen. Alex Padilla (D-Calif.), a member of Durbin’s committee, said he would like to see an investigation into Alito’s conduct.

“There’s no way he was unaware,” Padilla said, referring to Alito’s statement to The New York Times that the flag was briefly displayed by his wife without his knowledge.

Sen. Sheldon Whitehouse (D-R.I.), a senior member of the panel, agreed in a statement to POLITICO. “Supplying strange excuses to Fox News is not a substitute for a real investigation into whether Justice Alito needs to recuse from insurrection cases.”

Whitehouse said the episode underscored the need to pass his legislation overhauling ethics and transparency requirements for the Supreme Court, which passed the committee in July 2023 on a party-line vote despite fierce GOP opposition.

One point of Democratic agreement: Alito's explanation for the flag flap was unconvincing.

“I don't think [Alito] has a thing for gold bars,” said Sen. John Fetterman (D-Pa.), referring to the ongoing corruption case of Sen. Bob Menendez (D-N.J.), who has also cast blame on his wife for some of the alleged conduct. “But I don't ever think throwing your wife under the bus is ever going to be a great strategy for anything.”

Durbin agreed: “I've been in this business for a few years and I want to tell you: Pointing to your wife is never a good defense.”

But for Judiciary member Sen. Peter Welch, (D-Vt.), the Alito flag episode was just another moment from a justice who has become a top foil for Democrats, particularly after authoring the decision that overturned Roe v. Wade.

“This is so incidental to all the bad stuff he's done,” said Welch. “This is terrible. Was it him? Was it his spouse? Who knows? Does it really make a difference? Not to me. What makes a difference to me is his terrible decisions and shooting off his mouth. He's just a terrible justice.”