A senior U.S. district judge is denouncing U.S. Supreme Court Justice Samuel Alito‘s flying of two insurrection-related flags at his homes in Virginia and New Jersey, declaring the actions “improper. And dumb.”
Judge Michael Ponsor, 77, who has served on the federal bench since 1984, writes in a Friday New York Times op-ed that he has “known scores, possibly hundreds, of federal trial and appellate judges pretty well,” and “can’t think of a single one, no matter who appointed her or him, who has engaged or would engage in conduct like that.”
“You just don’t do that sort of thing, whether it may be considered over the line, or just edging up to the margin. Flying those flags was tantamount to sticking a ‘Stop the steal’ bumper sticker on your car. You just don’t do it.”
Justice Alito’s first flag scandal came late last week, when The New York Times reported an upside down U.S. flag had flown at his Virginia home jut days before Joe Biden was sworn in as President. That flag is associated with the insurrectionists who stormed the Capitol on January 6, 2021. As of January, more than 1200 who were there that day have been arrested and charged with crimes.
Alito blamed his wife, claiming she made the decision to fly the flag upside down, which according to the U.S. flag code should only be done to signal distress. Martha-Ann Alito, her husband claimed, had gotten into an argument with a neighbor and manifested her anger by flying the “Stop the Steal” flag.
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The second flag scandal came on Wednesday, when The Times again revealed an Alito insurrection-related flag, this time at his New Jersey home, where the Alitos were flying the “Appeal to Heaven” flag which has ties both to the insurrectionists, and to extreme right Christian nationalists.
Justice Alito has not made any public comment defending his second flag.
Judge Ponsor offered up a hypothetical to counter Justice Alito’s claim his wife was to blame, in this case, an example of him presiding over a death penalty case.
“Let’s say my wife was strongly opposed to the death penalty and wished to speak out publicly against it. I’m not saying this is true, but let’s imagine it. The primary emotional current in our marriage is, of course, deep and passionate love, but right next to that is equally deep and passionate respect. We would have had a problem, and we would have needed to talk,” Ponsor explained.
“In this hypothetical situation, I hope that my wife would have held off making any public statements about capital punishment, and restrained herself from talking about the issue with me, while the trial unfolded. On the other hand, if my wife had felt strongly that she needed to espouse her viewpoint publicly, I would have had to recuse myself from presiding over the case, based on the appearance of partiality.”
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Note he mentions as a sitting federal judge he would have applied the same standards that jurors are expected to observe: to not discuss the case with anyone, including their spouses.
And should there have been a discussion, or if she were to air her views publicly, he would be forced to recuse himself from the case.
Justice Alito has not recused from any 2020 presidential election cases, any Trump-related cases, any insurrection-related cases.
That includes the Trump “absolute immunity” case the Supreme Court heard in April, for which they have yet to rule.
The Supreme Court “recently adopted an ethics code to ‘guide the conduct’ of the justices,” Ponsor observes. “One of its canons states that a justice should ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ That’s all very well. But basic ethical behavior should not rely on laws or regulations. It should be folded into a judge’s DNA. That didn’t happen here.”
