There's a simple reason why Amy Coney Barrett should recuse from any case on the 2020 election

There's a simple reason why Amy Coney Barrett should recuse from any case on the 2020 election

If Judge Amy Coney Barrett is confirmed to the Supreme Court before the November election, she must recuse herself from any case involving disputes over the vote.

The reason for this is simple. President Donald Trump, before he officially picked Barrett as his nominee, made clear that he intended to appoint a justice to intervene in the election and stop what he calls a "hoax" involving mail-in ballots. These comments inevitably make it the case that Barrett cannot be seen as an impartial arbiter in election-related matters, as the president has tainted her nomination with the appearance that he picked her to undermine any result unfavorable to him.

But, as Politico reported, Barrett did not commit to recusing from election-related cases in a Senate questionnaire.

This is disturbing, because Trump's comments about his intent to pick a justice were unambiguous.

"We need nine justices. You need that," Trump told reporters on Sept. 23. "With the unsolicited millions of ballots that they're sending, it's a scam; it's a hoax. Everybody knows that. And the Democrats know it better than anybody else. So you're going to need nine justices up there. I think it's going to be very important. Because what they're doing is a hoax, with the ballots."

Mail-in ballots are not a hoax, and it's a clear threat to democracy that the president is telegraphing his refusal to accept the results of the election. And because these comments came literally while Trump was deciding who to appoint to the Supreme Court, Barrett cannot pretend they are irrelevant.

Now, the actual law governing judicial recusals is relatively vague, and at the level of the Supreme Court, it's the justices themselves that determine when and if to recuse. Barrett has already committed to recusing from cases that she has already had a hand in as a judge, that affect her family members, or that involve her previous employer, Notre Dame. One clause in the law could plausibly be interpreted to cover the kind of recusal I'm suggesting:

[a judge or justice] shall also disqualify himself in the following circumstances:

(1)Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

The personal bias I'm suggesting Barrett has is that she was appointed while it was publicly known that she was expected to rule in upcoming election cases on the notion that mail-in ballots were a hoax.

It's true, of course, that judges and justices are often expected to rule in certain ways in certain types of cases when they're appointed, and this shouldn't immediately disqualify them or force a recusal. Trump has been pretty explicit, though at times cagey, that he would like to appoint people like Barrett because he thinks they'll overturn Roe v. Wade. Democratic candidates could reasonably suggest they want to appoint justices that uphold a woman's right to choose. While some bristle at these explicit statements of policy preferences in judicial nominations, they seem well within the range of normal politics. It's fair game for presidents to pick justices who will share certain dispositions on matters of policy.

But Trump's comments about Barrett's purpose on the court go well beyond policy preferences. He said that the person he nominates is specifically needed because of "the unsolicited millions of ballots that they're sending," which he says are a "scam" and a "hoax." This is a delusional conspiracy theory, and it's one that pertains directly to his own personal and political fortunes, not policy more broadly. Therein lies the threat of corruption.

Barrett and her defenders may say it's unfair to smear her with allegations arising from the president's remarks, which she had no control over. But demanding her recusal is not a smear; it simply comes from a fear that the specific circumstances of her nomination create a bias, or at least the appearance of a bias. Why shouldn't observers worry that, as part of her effort to persuade Trump to give her the nomination, Barrett had to signal her support for his corrupt view of the election? Trump has been known to try to make such corrupt deals behind closed doors, including with former FBI Director James Comey or Ukrainian President Volodymyr Zelensky.

Again, one might say this is unfair to Barrett. She's far more personally decent than Trump is and hasn't demonstrated his proclivity for corruption.

But she doesn't have clean hands here. She knows what kind of man Trump is, and she accepted his nomination. Not only that, she participated in the pageantry of the nomination with him, appearing and speaking beside him as a character in his Supreme Court nomination stage play. Her family attended. By playing her part, she's accepted the role Trump is playing in her ascension. And she must be held account for that role by recognizing when it creates a clear conflict with her position as an impartial member of the judiciary.

Some have urged that Barrett recuse herself election-related cases for vaguer reasons. Sen. Richard Blumenthal (D-CT) told reporters, according to Politico: "The underlying fault here is with the timing, which makes it a sham, but certainly she should recuse herself. In a normal world, there would be no question about it."

But this isn't that convincing. Yes, the timing and context of her appointment are extremely fraught and unseemly for many reasons, but that doesn't create a demand for a specific recusal. Trump's specific comments about the purpose Barrett would serve, however, does create such a demand.

And the fact is, the best way Barrett could prove that she is independent from Trump and not playing a part in his corrupt scheme is by committing to recuse from any election case. That would clear any suspicion Trump's words may have inappropriately created. Some worry that a Supreme Court with only eight justices might end up deadlocked if presented with an election dispute. But the justices in such a case would have a strong incentive to find a compromise. And if they couldn't, then the decision would fall to the lower court's ruling. Republicans sounding the alarm about such a possibility are also clearly hypocrites, since they intentionally left the court with only eight members during the 2016 election.

If Barrett does get appointed to the court, and she does play a key role in an election ruling in Trump's favor, it will be yet another devastating blow to the legitimacy of the entire system.


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