Below is my column in The Hill on the call for Justice Amy Coney Barrett to recuse herself or be impeached. The call for recusal is indicative of demands and threats that are becoming more unhinged by the day. Whether it is adding or impeaching justices, the Democrats are yielding to the same 30 percent of irate and increasingly irrational voters in their base. What is concerning is the utter lack of responsible voices from the party to counter this retaliatory impulse or to defend the institution of the Court. Instead, former Vice President Joe Biden’s declaration that the Court is “out of whack” now means that many Democrats are out to whack either the Court or its members.
Here is the column:
Judicial confirmations tend to be staid affairs in the Senate, with rhetoric running from calm regret to restrained celebration. This week, however, the language had the more menacing tenor of a syndicate rather than a Senate. Richard Blumenthal warned of “consequences” if his colleagues dared to confirm in a reference to threats to change the Supreme Court. The message was clear to vote “no” or the Supreme Court gets it.
Senate Minority Leader Chuck Schumer went full Tony Montana with his “Scarface” version of “You wanna play rough? Say hello to my little friend.” He threatened to use the potential Democratic majority to strip the rights of Republicans that he declared “forfeited” in the confirmation.
Democrats feel disrespected and are threatening acts of retaliation in changing the Senate or the Supreme Court. But the most unhinged was the idea to impeach Amy Coney Barrett after she assumes her seat. This option was raised by columnist Norman Ornstein, who wrote that if she “immediately votes for voter suppression” after she joined the Supreme Court “she should quickly be impeached” because President Trump had “asked her openly to act to tilt the scales of the election.”
It does not matter that Barrett denied such a conversation and that no one has an inkling of how she would vote on election challenges that have not even been filed. Ornstein was building on demands from various senators that Barrett promise to recuse herself from any election disputes. Others have demanded her recusal with pending cases, such as the challenge to the Affordable Care Act to be heard next month. After Barrett declined to discuss her personal views on the environment, still others demanded her recusal forever from any cases related to climate change.
The Supreme Court has been asked to block an extension of mail voting in Pennsylvania, and one party demanded Barrett to recuse herself from the case. The demand is legally and logically absurd. Justices are largely their own judges on recusal. While Blumenthal demanded in her confirmation hearing that she has to recuse herself, doing so would raise concerns of impropriety and political influence. Democrats were demanding that she remove herself without any legal basis for recusal. Now they are trying to muscle her out with this “recuse or be impeached” ultimatum.
Since they hold the highest judicial positions, Supreme Court justices do not submit to the review of lower court judges on conflicts. It is rare for justices to recuse themselves from merits cases although, for the 2019 term, the nine justices recused 145 times from the review with possible cases for argument. This is done for a variety of reasons, from financial interests in the underlying claims to personal interests in the parties or litigators. New justices are the most likely to recuse on merits cases due to past involvement in the litigation or decisions, as Justice Elena Kagan did after she served as solicitor general under President Obama.
The recusal standard is in the federal code of law, which details grounds like personal bias or prejudice, prior representation, or financial interests of a justice or her spouse. Democrats have been unable to find any direct conflict and instead count on a weak claim of an appearance of a conflict, but that is based on Barrett being confirmed before the election.
The recusal claim is opportunistic. It also is the flipping of the narrative. Democrats falsely accused Barrett of being nominated for the purpose of striking down the Affordable Care Act. The case concerns severability to remove a provision, like the defunct individual mandate, from the rest of the law to preserve it. No credible legal scholar thinks the Affordable Care Act is about to be struck down because at least two conservative justices will probably vote for severability. Indeed, it is far more likely that the law would be unanimously upheld on severability than struck down.
There is absolutely no indication how Barrett would rule on the issue. Yet Democrats made her confirmation all about a “scheme” by Trump to get her on the Supreme Court to strike down the law, showing the oversized photos of the purported victims at the hearing. The real reason for filling this seat is obvious. Republicans wanted to do this in case they lose the White House or the Senate, and they have been clear about that.
None of this has to do with a recusal from any election cases for Barrett. Claiming a conspiracy theory based on her as a judicial shill is not a legal basis for recusal. It is an insult disguised as a demand. For those folks like Ornstein, it also is one excuse for a “recuse or be impeached” threat. He knows no jurist would recuse herself without any certain legal basis from potential election cases. It would also leave the Supreme Court in danger of a potential tie on some of the most significant rulings in history.
However, that is not the point. By stating a demand that Barrett is unlikely to fulfill, Democrats create another excuse for abusive retaliation. Just as Schumer claims license to strip a future Republican minority of powers or privilege under a Democratic majority, others give themselves license to impeach a justice for refusing to yield to raw political demands.
Democrats are not talking about using their Senate majority in the same way should a Supreme Court vacancy arise, which would be fair action. They are talking about trashing the Senate rules, attacking the Supreme Court, or impeaching Barrett as the license of the victims turned victors. With the latest nomination, Joe Biden declared the Supreme Court is out of whack. Now something or someone is about to be whacked.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.