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Opinion Barrett’s refusal to recuse on the election is disqualifying

The Senate Judiciary Committee will hold its third day of Supreme Court confirmation hearings for Judge Amy Coney Barrett on Oct. 14. (Video: The Washington Post)

Republicans are rushing through Judge Amy Coney Barrett’s confirmation as millions of voters cast their ballots. The Republican senators who will confirm her have made clear, as President Trump has, that they have to get her in there. We may need the ninth justice to decide the election, Republicans have said. Trump has refused to commit to respecting the outcome of the election, and Republicans speak about accepting the court’s decision, not the vote count, as if they plan to withhold recognition of the newly elected president unless and until the Supreme Court approves. No wonder Trump is frantic to fill the court’s vacant ninth seat and Senate Republicans ignored the Merrick Garland rule (no Supreme Court confirmations in an election year).

Under questioning Tuesday from several Senate Judiciary Committee members, especially Sen. Christopher A. Coons (D-Del.), Barrett refused to commit to recusal in cases involving the reelection of the president who nominated her. First, she insisted she had made no deals with anyone. That’s not the issue. Then she feigned offense: “I certainly hope that all members of the committee have more confidence in my integrity than to think I would allow myself to be used as a pawn to decide this election for the American people.” Actually, that’s exactly what concerns many Americans, because Trump and Republican senators have made clear they chose her, and are determined to confirm her, for this very purpose.

The nomination of Amy Coney Barrett

The issue is not an explicit deal between Barrett and Trump, nor even her pureness of heart. It is the inevitable perception that if the election winds up in the court, her vote would be seen as hopelessly compromised. Voters know she was rushed through. Voters know Trump’s and Republicans’ expectations. How could they possibly not conclude that the rush was in case they needed her to determine the election outcome?

What is disturbing is not simply Barrett’s inability to give an answer but her seeming inability to recognize that refusing to answer may seriously damage the Supreme Court. The court is already seen as a partisan operation. The president already draws a line between “Obama judges” and his own appointees. The process is already hypocritically altered for the express purpose of installing Barrett in time to referee any election disputes.

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For once the hyper-politicization of the court could be halted if the nominee would stop acting like a political player. What better way to show she is not beholden to the president and the Republican Senate than to say she is not going to facilitate the gamesmanship? What better way to say she won’t be responsible for further diminishing the court’s integrity creating the impetus for further norm-breaking?

Instead of insisting on a court-packing answer from Democratic nominee Joe Biden, we should be insisting on a straight answer from Barrett on election cases. It should not be that hard. The recusal statute that she referenced (which is not binding on Supreme Court justices) is exceptionally broad. “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Can one say with a straight face that one could not “reasonably” question her impartiality under such circumstances?

Barrett’s refusal to say definitively that Trump could not unilaterally move the election datewhich is set in statute — is further evidence of her unwillingness to articulate positions, even obvious legal answers, that contradict Trump. Worse, she refused to defend a basic principle of American democracy. “To the extent that this is a political controversy right now, as a judge I want to stay out of it, and I don’t want to express a view,” she said in response to a question from Sen. Cory Booker (D-N.J.) concerning her view of Trump’s refusal to pledge to a peaceful transfer of power.

Frankly, given Barrett’s past explicit and forceful condemnation of abortion, we can reasonably assume she would not be impartial on abortion, either. (Imagine if she had signed a petition saying that affirmative action is morally abhorrent.) Her failure to produce the text of speeches given to pro-life groups is further evidence that she is trying to play down the degree of her commitment to eradicating abortion. Her arbitrary determination that abortion precedent dating back nearly five decades is not “super-precedent” tells you exactly where she is heading. The people who pushed for her nomination, the president who picked her and the senators who will confirm her have zero doubt, either.

That said, the more egregious issue is her refusal to recuse on a presidential-election case. If she won’t recuse, then shouldn’t a fair-minded Republican — Sen. Mitt Romney (Utah) may be the only one — insist that we eliminate the cloud over her head by withholding a final vote until after the election is decided? If she does not care about the integrity of the court, at least one GOP senator should. Three would make it happen.

The more Barrett and Republicans object to a recusal commitment, the clearer it becomes that one is essential. The adage that no man should be able to pick a judge in his own case has never been more on point.

Read more:

Dana Milbank: Postpone the election? Voter intimidation? Amy Coney Barrett is open to it.

Alexandra Petri: Civics 101: The Amy Coney Barrett hearing edition

Molly Roberts: Why do we even bother to watch these hearings?

Marc A. Thiessen: Biden says voters don’t deserve to know his position on court-packing. That’s unacceptable.

O. Carter Snead: I’ve known Amy Coney Barrett for 15 years. Liberals have nothing to fear.

Michael Gerson: Confirming Barrett is a fairy-tale temptation rife with dark trade-offs