No, Barrett Should Not Recuse Herself From Any Election Challenge

Minority Leaders Chuck Schumer and various commentators have called for Amy Coney Barrett to recuse herself from any decision on the 2020 general election. There is no reason for such a recusal, which would be unprecedented in these circumstances.  Moreover, it would establish a dangerous precedent of nominees securing their positions by promising results or positions if confirmed by the Senate.

In today’s USA Today, Mario Nicolais, a Republican who is an adviser to the anti-Trump Lincoln Project, calls for such a recusal to counter “the corrupting influence Trump can exert on another coequal branch of government” and preserve the appearance of impartiality of the Court.

Such a pledge however would not preserve impartiality but destroy it. It would be a promise to enhance the chances for Democrats in any challenge by removing her vote — as a condition for confirmation.  Ironically, it would be precisely the type of pledge that Ruth Bader Ginsburg refused to make on cases when she established the “Ginsburg Rule.” She considered it improper and unethical to demand from concessions or promises from a nominee.

We do not know how Barrett would rule on any election challenge. There is no basis in her background as either an academic or a judge to assume that she would vote against any Democratic position or advance any “corrupt” purposes of the President. It is insulting to suggest that her nomination was made for that purpose. The assumption of such blind bias says more about those demanding a baseless recusal than it does Judge Barrett.

When I testified in favor of the confirmation of Neil Gorsuch, I told the Senate that he was an intellectual who, in my view, would not hesitate to vote against the Administration if he believed it was wrong on the law. He has done so repeatedly.  Indeed, the Trump nominees have repeatedly voted with their liberal colleagues on major cases. Notably, Ginsburg actually was one of the least likely justices in history to do so. She had one of the most consistent voting records on the left of the Court in history.

Nevertheless, Nicolais declared that Barrett “must immediately and unequivocally announce her intention to recuse herself from cases related to the 2020 presidential election.”  This demand is entirely at odds with the standards used for recusal on the Court. Recusals are relatively rare on the Court but tend to occur when a justice voted on any underlying case as a lower court judge, played a role in the underlying policy as an executive branch official, or has come personal interest in the outcome of the case.  None of those rationales would apply in this case. Instead, Barrett is being asked to promise to step aside to reduce the expected votes for the Administration.

If critics truly want to fight corruption on the Court, they should not seek to introduce the ultimate corruption of conditional confirmations. Barrett should make no such pledge as a condition for her confirmation and, absent a real conflict with a given case, she should rule on cases as mandated under the Constitution.


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