The first indication of how seriously she takes her oath of office and ethical obligations will likely come soon. In a Pennsylvania case challenging state officials’ ability to count mail-in ballots cast on or before Election Day but received after polls close, the U.S. Supreme Court split 4-4, thereby upholding the state supreme court’s ruling allowing such votes. Now with Barrett on the court, Republicans want to bring the case back to the Supreme Court, betting Barrett will tip the scales in their favor.
So far, the conservative bloc of judges seems ready to assist Republicans in limiting vote-counting. Justice Brett M. Kavanaugh, for example, was blasted for an opinion on Monday positing that Wisconsin had a right to announce a winner on Election Day. (Even if it disenfranchises millions of legal voters?!)
We will have an answer soon enough as to whether Barrett is going to join in such partisan chicanery. Pennsylvania’s Luzerne County Board of Elections has filed a brief with the Supreme Court demanding Barrett recuse herself if the case involving ballots received after Election Day is heard again.
“The nomination and confirmation of a Supreme Court justice this close to a presidential election is unprecedented,” the brief states. “As concerning as that is, what is even more troubling is the language President Trump has used in consideration of this nomination, linking it directly to the electoral season at hand, with implications for his own re-election.” The argument maintains that Trump rushed that confirmation process in an obvious attempt to stack the deck in cases involving his reelection, which “raises a terrible ‘appearance’ problem which can only engulf the Supreme Court in a political stew with poisonous consequences for the independence and perceived integrity of the judiciary.”
The brief cites a case regarding a justice on West Virginia’s supreme court to show that failure to recuse when necessary impinges on the due-process rights of the litigants. In that case, the brief argues, what was critical “was not the justice’s own beliefs, nor even the presence of actual bias which mattered, but instead, the ‘objective risk of actual bias that required [the justice’s] recusal.’” The brief continues:
The law has long understood “the universally recognized legal maxim, nemo judex in causa sua, [‘no one may be his own judge’].” . . . [The West Virginia case] adds an important annex: improprium eligere vestri iudici — “no one may choose his own judge.” The present case is one of utmost important to the President’s re-election bid. Just as President Trump has placed Justice Barrett on the Supreme Court with whatever hope or expectation he may have, he has also imposed on her the duty to recuse herself in this case. Her integrity and the integrity of this Court cannot tolerate any other choice.
The brief also points out that the judicial rules governing lower federal court judges require recusal based on how his or her “participation in a given case looks to the average person on the street.” The standard is whether participation in a case might cause a reasonable person with knowledge of the circumstances to “harbor doubts about the judge’s impartiality.” That is certainly the case here.
Election-law guru Rick Hasen tells me that “[Barrett] gets to make her own decision. I think it would be wise for her to recuse for her reputation in the long run, given Trump’s comments about why he wanted to rush her to the court.”
Should Barrett participate in an election case so obviously fraught with the appearance of conflict and bias, her rulings in other cases will be seen as suspect, and the court’s reputation, which Chief Justice John G. Roberts Jr. has struggled to preserve, will be shattered. The one sure-fire way to fuel talk of expanding the court or stripping its appellate jurisdiction would be for her to participate in the case and rule in favor of Republicans’ vote-suppression agenda.
If Barrett really wants to take the wind out of Democrats’ sails and stave off court-packing, term limits and other proposed reforms of the judiciary, she can put her embarrassing partisan display on Monday night behind her and demonstrate she is a principled and ethical judge.