Barrett has eluded their requests and made no commitment. Yet with controversies over state ballot practices escalating and the possibility of a replay of the 2000 Bush v. Gore ordeal in the air, the topic is sure to surface at Barrett’s Senate confirmation hearings next week.
Trump has pointed to the November 3 election as a reason for seeking swift Senate confirmation of Barrett, a federal appeals court judge who would be his third appointee to the nine-member bench. The Republican incumbent has said he believes the Supreme Court could ultimately decide whether he is the victor over Biden.
“I think this will end up at the Supreme Court,” Trump said about the possibility of an intractable ballot controversy. “And I think it’s very important that we have nine justices.”
Supreme Court practice leaves it to individual justices to decide when to recuse themselves from cases. In her recent questionnaire to the Senate Judiciary Committee, Barrett noted that federal ethics law covering lower court judges is not binding on the Supreme Court but said she would look to it, as other justices have.
The law requires judges to disqualify themselves when their “impartiality might reasonably be questioned.” Rarely do Supreme Court justices sit out cases and typically only when they have a financial stake or family connection to the dispute.
As Democrats have pounded away at a possible conflict of interest for a Justice Barrett, law professors are divided on the issue.
“I agree that justices can sit in cases that are of great consequence to the appointing president,” New York University law professor Stephen Gillers told CNN, but added: “That’s not this situation. Here, Barrett would be asked to decide whether Trump will keep his job after Trump gave Barrett her job just weeks earlier while publicly anticipating her vote in his favor.”
But Ross Garber, who teaches at Tulane Law School, is of the opposite mind, saying Barrett need not recuse herself because she would already have lifetime tenure and “no stake at all in the outcome of the election.” Garber added, “I’d go so far as to say she has a duty to sit and hear any elections cases that come before her.”
Rules and the history of recusals
Supreme Court practice rests on a presumption that justices can be impartial even in thorny, politically charged cases. In December 2011, Chief Justice John Roberts addressed the subject in his year-end report, as some partisan advocates were calling for recusals related to the court’s first consideration of the constitutionality of the Affordable Care Act.
Referring to the dictate that judges must sit out cases when their impartiality might “reasonably be questioned,” Roberts said the standard focuses the “inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts.”
Roberts’ remarks came as various activists contended two justices should not take part in the momentous health-care case: Clarence Thomas, whose wife, Virginia, had been a strong opponent of the law, and Elena Kagan, who had worked in the Obama administration as it the act was being passed.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote, without naming any justices. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they give careful consideration to any recusal questions that arise in the course of their judicial duties.”
Roberts also noted that a recusal could leave the nine-member court shorthanded. “(I)f a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the court to be sure of the need to recuse before deciding to withdraw from a case.”
The decisions of Supreme Court justices on whether to recuse, unlike such determinations of lower court judges, are not subject to review. But they can stir controversy, as when the late Justice Antonin Scalia decided to participate in a 2004 dispute that involved then-Vice President Dick Cheney, with whom Scalia had just taken a duck-hunting trip to Louisiana. Scalia and Cheney, old friends who often socialized together, flew to Louisiana on Air Force Two.
The Supreme Court case to be heard soon after centered on an energy task force over which Cheney presided. Scalia rejected a recusal request from one of the parties, saying, “Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse.”
“The vice president and I were never in the same blind, and never discussed the case,” he also wrote in a 21-page response to the recusal request. Referring to the free air flight down to Louisiana, Scalia added, “If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble that I imagined.”
As she meets with senators in anticipation of the October 12 start of her hearings, Barrett has referred to the factors she considers when weighing whether to abstain from a dispute.
They echo what she wrote in her Senate questionnaire, regarding cases that could involve family members or the University of Notre Dame, where she taught full time (2002-2017) before becoming a federal appellate judge and where she is still an adjunct professor.
“If confirmed,” she wrote, “I will continue my present practice of using a recusal list to identify and avoid potential conflicts. This includes, but is not limited to, cases where Jesse Barrett, my husband and a practicing attorney, or Amanda Coney Williams, my sister and a practicing attorney, participated in any stage of the proceedings. This list also includes cases where Notre Dame University or affiliated entities (including, but not limited to, Notre Dame Law School) were a party. Finally, I would also recuse myself from matters in which I participated while a judge on the court of appeals.”
As she spoke with Democratic senators this week, Barrett declined to be pinned down regarding the presidential election, senators said.
“I specifically asked her to recuse herself,” Delaware Sen. Chris Coons told reporters. “She made no commitment on recusal.”
Coons said he expressed concerns to Barrett about the court’s involvement in the Bush v. Gore battle, and he told reporters, “I just think we have a different view of that case.” Barrett, who was in private practice in 2000, worked on the Florida legal team of then Texas Gov. George W. Bush.
Responding to a question about senators’ recusal queries, White House spokesman Judd Deere said, “Asking the nominee to pre-judge or promise a decision on a case — including the decision to take the case at all — violates the bedrock constitutional principle of judicial independence.”
Stakes beyond 2020
While the recusal line of inquiry could be the most prominent of this election-season confirmation hearing, senators are likely to try to draw out Barrett’s views that could affect voting rights in the decades ahead.
Her record suggests she would strengthen the current five-justice conservative majority’s narrow interpretation of the 1965 Voting Rights Act and express an interest in leaving ballot disputes to states.
Barrett, who served Scalia as a law clerk in the 1998-1999 session, declared at the White House Rose Garden ceremony last month: “His judicial philosophy is mine too.”
Scalia, who died in 2016, joined the majority in cutting off the Florida recounts and giving Bush the White House over Gore 20 years ago. Scalia also joined the 2013 Shelby County v. Holder decision curtailing a section of the Voting Rights Act that had required localities with a history of race discrimination to seek federal approval for any electoral changes. Scalia was also part of the majority in Citizens United v. Federal Election Commission that lifted regulations on corporate and labor union money in elections.
As a judge on the 7th US Circuit Court of Appeals during the past three years, Barrett handled scant voting disputes. She did not list any as major cases in her Senate questionnaire, and considered individually, they defy generalization.
She has, however, made clear in her writings that she recognizes presidential elections are intertwined with Supreme Court stakes.
Referring to her conservative mentor Scalia and to liberal Justice Stephen Breyer, Barrett wrote in a 2013 law review essay, “Americans understand that there is a difference between Justice Scalia’s originalism and Justice Breyer’s ‘active liberty’; that is why Supreme Court nominations are an issue in presidential elections.”