WASHINGTON — Senate Judiciary Committee Chair Dick Durbin, D-Ill., reiterated to reporters Monday that he wants Supreme Court Justice Samuel Alito to recuse himself after The New York Times reported that an upside-down American flag hung outside his home in mid-January 2021.
But Durbin said he doesn’t plan to hold an inquiry.
“No, we haven’t got anything planned. I think he’s explained his situation. The American public understand what he did,” he said. “But I don’t think there’s much to be gained with a hearing at this point. I think he should recuse himself from cases involving Trump and his administration.”
And if Alito refuses to recuse voluntarily?
“There’s no recourse other than impeachment, and we’re not at that point at all,” Durbin said.
Still, other Democrats on the committee said they were alarmed by the situation and wanted to look into it. And Sen. Lindsey Graham of South Carolina, a senior Republican and former chairman of the Judiciary Committee, said the upside-down flag reflected poor judgment by Alito, a conservative member of the court.
“It’s not good judgment to do that,” Graham told reporters. “I don’t know what role — he said his wife was insulted and got mad. I assume that to be true. But he’s still a Supreme Court justice. And people have to realize that moments like that — to think it through.”
Sen. Mitt Romney, R-Utah, said he hasn’t delved into the Alito matter but added, “Obviously it looks very unfortunate, and we ought to take a good look at it.”
The upside-down flag, long seen as a distress signal, was brandished by some Jan. 6 rioters who stormed the Capitol in response to the fabricated claim that the 2020 election was stolen from President Donald Trump. After the Times article was published, Alito told Shannon Bream of Fox News that his wife hung the flag upside down “for a short time” after an anti-Trump neighbor made rude and vulgar comments toward her. Neighbors, the Times reported, were alarmed by the display on the Alitos’ property in mid-January 2021, between the Jan. 6 attack and President Joe Biden’s inauguration.
Alito didn’t respond to a request for comment.
Durbin said, “I’ve been in this business a few years and I want to tell you: Pointing to your wife is never a good defense.”
Sen. Sheldon Whitehouse, D-R.I., the second-ranking Judiciary Democrat, said “we should investigate” the Alito incident. He said that it was “too early to tell” what a probe should look like but that it should “obviously” involve subpoena power, if necessary.
Sen. Alex Padilla, D-Calif., said he’d support an investigation.
“There’s no way he was unaware of it,” Padilla said.
Sen. John Fetterman, D-Pa., said he doesn’t understand why Alito or any other justice “would allow him to be painted in that kind of way” and have his impartiality questioned.
“If that dude wants to fly his freak flag — it’s very strange,” Fetterman said. “Now you wonder: Does he love Tucker Carlson and all kinds of weird, kinds of strange stuff like that?”
“I don’t ever think throwing your wife under the bus is ever going to be a great strategy for anything,” he added.
Sen. Peter Welch, D-Vt., a freshman on the Judiciary Committee, said he doubts an investigation would be fruitful.
“There should be a strong standard of ethics. I don’t think we should waste our time at this point,” he said. “Whether it was just Alito’s spouse who was doing it or him, it was clearly inappropriate. I don’t see a so-called investigation going anywhere. It is what it is.”
Sen. John Kennedy, R-La., said he doesn’t fault Alito.
“This is America. Mrs. Alito is entitled to her opinion. But I don’t see any proof whatsoever that Justice Alito had anything to do with it,” he said. “You come home and tell my spouse that she is not entitled to her beliefs? If you do that, I see a murder in my future.”
Frank Thorp V
Frank Thorp V is a producer and off-air reporter covering Congress for NBC News, managing coverage of the Senate.
Syedah Asghar
Syedah Asghar is a Capitol Hill researcher for NBC News and is based in Washington, D.C.
