Barrett has an obligation to recuse herself from those disputes, and she should promise to do just that.
Trump has made clear he wants Barrett in place to help him win the election. “I think this will end up in the Supreme Court,” he said. “We need nine justices.” Senate Republicans parrot the president. A Supreme Court with just eight justices, claimed Sen. Ted Cruz (Tex.), “lacks the constitutional authority to decide anything.” That’s simply wrong.
The court holds the constitutional authority to decide cases with eight justices; it actually needs only six for a quorum. If the court happens to split 4 to 4, the lower court ruling would stand. Somehow, that prospect didn’t bother Republicans four years ago. They made sure we had only eight justices during the 2016 election when they stonewalled Merrick Garland’s nomination.
What has changed? Trump is watching voters turn out in droves, which is never a good thing for Republicans. So Republicans are out to suppress the vote at all costs — a strategy, the president believes, that will throw the election to a Supreme Court fixed to rule for him.
Republicans want to rush Barrett through in time to deliver what could be the key vote on behalf of the president who chose her.
For Barrett, this is a test of integrity, both for herself and for our system of government. She must commit to recuse herself from any election-related dispute.
Republicans will no doubt insist that Barrett is beyond reproach, and will promise that she can put aside everything but the facts and law of the case before her. Fine. But federal law counsels recusal if a judge’s “impartiality might reasonably be questioned.”
The issue is not whether Barrett has good intentions or is horribly biased; it’s whether a reasonable observer could reasonably question her participating in a dispute involving Trump’s reelection as a neutral arbiter of fact and law.
This inherent conflict was evident from the start — but Trump gave away the game. His comments acknowledging that he’s appointing Barrett to decide whatever election dispute he can manufacture make it untenable for her to hear his case.
But there’s an even more fundamental reason Barrett would need to recuse herself: the U.S. Constitution demands it.
In 2009’s Caperton v. A.T. Massey Coal Company, the Supreme Court considered whether the Constitution’s guarantee of due process required West Virginia Supreme Court Justice Brent Benjamin to recuse himself from an appeal of a $50 million judgment entered against a coal company. Benjamin joined the bench after the coal company’s chief executive spent $3 million to help Benjamin win election to the court. The plaintiffs sought Benjamin’s recusal, but he refused, insisting he wasn’t biased. He then cast the deciding vote to overturn the jury’s verdict against the coal company.
The Supreme Court ruled that Benjamin’s participation in the case violated due process. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause,” Justice Anthony M. Kennedy wrote. Isn’t that just what would be happening here?
Because of the potential for bias, the Constitution demands recusal here, too, under the factors the court applied in Caperton: Trump had “disproportionate influence” over Barrett’s selection. He has a “personal stake” in any case.
Finally, those disputes are “imminent”; they could already be pending, or filed days after Barrett takes office. This “imminence” requirement is critical. Unlike the nominations of Justices Neil M. Gorsuch and Brett M. Kavanaugh, Trump and Republicans are today talking openly of the court settling the 2020 election, and Republicans are fast-tracking Barrett’s confirmation to beat Election Day.
No one admitted in Caperton that the campaign contributions were made specifically to help the coal company’s case. Here, the president actually announced he’s hoping Barrett will help him keep the presidency by ruling for him in any election dispute.
The White House is resisting calls for Barrett’s recusal, saying that would somehow compromise her “judicial independence.” But that’s not the actual constitutional precedent; and it overlooks that judicial nominees — including Barrett — commonly commit to recusals in their committee questionnaires.
Americans are already watching this confirmation process anxiously, fearful of losing the Affordable Care Act and long-standing precedents such as Roe v. Wade. They wonder why the Senate is consumed with this fight rather than acting on a bill to supply vital relief during this public health and economic calamity. They ask why the rush, if this is all on the up-and-up and not to put the fix in on imminent cases.
This is Barrett’s first big test. If she truly cares about judicial independence and the Constitution, she should recuse.