“This president has not been subtle and he expects his nominee to side with him on election issues,” Sen. Patrick J. Leahy (D-Vt.) said to Barrett at Tuesday’s hearing, adding: “The president has placed both you and the Supreme Court in the worst of positions.”
Barrett repeatedly said that neither the president nor anyone else in the White House urged her to rule one way or another on any specific case, including those that might concern the 2020 presidential election.
“I have had no conversations with the president or any of the staff on how I might rule,” she told Leahy. “It would be a gross violation of judicial independence for me to make any such commitment.”
Later, in response to a recusal question from Sen. Christopher A. Coons (D-Del.), Barrett said: “I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people.”
Trump has urged the Senate to quickly confirm his nominee, saying a ninth justice may be necessary if a case involving his reelection goes to the high court.
“I think this will end up in the Supreme Court,” the president said at the White House two days before naming Barrett as his choice. “And I think it’s very important that we have nine justices. It’s better if you go before the election, because I think this scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation.”
When asked at last month’s presidential debate by moderator Chris Wallace if he was counting on the Supreme Court, including a potential Justice Barrett, to settle an election dispute, Trump responded: “Yeah. I think I’m counting on them to look at the ballots, definitely.”
Democrats and ethics experts pointed to a federal statute that requires judges to recuse themselves from any proceeding in which their “impartiality might reasonably be questioned” by the public.
“In light of Trump’s public statements, it will reasonably appear to the public that Trump offered her the job with the implicit understanding that just weeks later she would help him keep his,” said Stephen Gillers, an expert on judicial ethics at New York University Law School.
“In no other case has a justice been asked to decide if the appointing president can continue to be president,” Gillers said, describing the ethical problem facing Barrett as clear and the recusal decision as “easy.”
Republicans reject that argument.
“Pledging a decision on a particular matter that may come before the court — including the decision of whether to hear a case or not — for political reasons, as Senate Democrats are asking Judge Barrett to do, would violate the bedrock constitutional principle of judicial independence,” White House spokesman Judd Deere said in a statement Monday.
Senate Majority Leader Mitch McConnell (Ky.) has called recusal concerns part of “made-up attacks” Democrats have launched against a well-qualified judicial candidate.
“Democrats are demanding that Judge Barrett commit in advance to recuse herself from entire categories of cases, for no reason,” McConnell said this month during an extended Senate floor speech.
“Nobody has ever suggested that Supreme Court justices should categorically sit on the sidelines until the president who nominated them has left office,” he added.
Michael McConnell, a former federal judge now teaching at Stanford University Law School, said in an interview that “it would be unprecedented for a justice to recuse because of a statement made by someone else — even if the statement was made by the president of the United States.”
“I’m confident that Amy Barrett will decide cases without regard to what President Trump has said,” said McConnell, who is not related to the Senate leader and was appointed to the bench by former president George W. Bush. “If anything, she and [Chief Justice John G. Roberts Jr.] and others on the court would bend over backwards to be sure that the decision is something the public would have confidence in.”
But Senate Democrats said that Trump’s comments put Barrett in an impossible situation, one that they said leads to the inescapable conclusion that she should recuse herself.
“Republicans want to rush Barrett through in time to deliver what could be the key vote on behalf of the president who chose her,” Sen. Sheldon Whitehouse of Rhode Island wrote in an op-ed for The Washington Post. “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.”
On Monday, Sen. Richard Blumenthal (D-Conn.) placed Barrett’s decision on recusal at the heart of a topic that has preoccupied the chief justice: The reputation of the court in an era of polarized politics.
“I’m really deeply concerned that the Supreme Court is losing the trust and respect of the American people,” Blumenthal said during the hearing. “The authority of the Supreme Court depends on that trust. It has no army or police force to enforce its decisions. The American people follow the Supreme Court’s commands, even when they disagree, because they respect its authority. Now, President Trump and the Republican Senate are eroding, indeed destroying, that legitimacy.”
Senate Democrats on Tuesday seized on Barrett’s refusal to answer a question from Sen. Dianne Feinstein (D-Calif.) about whether the Constitution gives the president the authority to unilaterally delay an election, a notion that Trump has floated. (He cannot.)
“Her refusal to stand up to the president on this obvious legal question is alarming, and indicates that she is more interested in pleasing President Trump than she would be in stopping his illegal behavior,” Sen. Charles E. Schumer of New York said in a statement. “Judge Barrett should immediately pledge to recuse herself from any cases involving the 2020 elections.”
Barrett played a minor role in Bush v. Gore, the only contested presidential election to come before the Supreme Court. As an associate in a Washington law firm, she worked for a week in Florida as part of a GOP effort to defend the integrity of thousands of absentee ballots that had been challenged by a Democratic voter.
Roberts and Justice Brett M. Kavanaugh also played roles in Bush v. Gore — meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the 2000 presidential contest.
Ethics experts said their work on that case would not present a barrier to participating in another involving a contested presidential election. But Trump’s statements put Barrett in a unique position, several said.
Democrats and ethics experts noted that a recent Supreme Court case, Caperton v. Massey, found that a judge’s failure to recuse in a state case resulted in violation of due process rights of the litigants. In other words, there is a constitutional recusal standard for judges.
In that 5-to-4 case, Justice Anthony M. Kennedy ruled that a judge was required to recuse himself because of assistance that had recently been provided in electing him to the state court, despite the judge’s claim that he was “impartial.”
Kennedy did not say that the state court judge was biased but instead concluded “that there is serious risk of actual bias — based on objective and reasonable perceptions.” He noted: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties’ consent — a man chooses the judge in his own cause.”
In a new questionnaire submitted to the Senate Judiciary Committee in connection with her Supreme Court nomination, Barrett said she would recuse herself from cases involving her husband, Jesse Barrett, and her sister Amanda Coney Williams, both of whom are attorneys.
Barrett also said she would recuse herself from cases that involve the University of Notre Dame, where she has been a law professor since 2002, and any matters she participated in while serving in her current role as a judge on the U.S. Court of Appeals for the 7th Circuit. She did not address recusal from any case related to the presidential election.
In the end, the decision of whether to do so would be solely up to Barrett.
Said Gillers: “There is no enforcement mechanism other than the conscience of the justice.”
While ethics rules require all federal judges to recuse from a case where their impartiality could reasonably be questioned, the rules are not enforceable for a Supreme Court justice in the way they would be for a lower-court federal judge, said Charles Gardner Geyh, a judicial ethics expert at Indiana University’s school of law.
Nevertheless, Supreme Court justices have faced pressure to recuse themselves over the years.
In 2011, Justice Elena Kagan did not respond to requests from conservatives to recuse herself from cases involving the Affordable Care Act, even though she was one of the administration’s top legal strategists when she served as solicitor general in the Obama Justice Department. Officials from that era said Kagan had not participated in strategy talks about how to defend the law.
Justice Clarence Thomas did not recuse himself from ACA cases even though his wife, a conservative activist, had spoken publicly against the law.
Similarly, Justice Ruth Bader Ginsburg did not recuse herself from cases involving the Trump administration, even though she said during the 2016 campaign she feared for the country if Donald Trump were elected. Ginsburg died in September.
If Barrett is asked to rule on a case involving the 2020 election, Geyh said he hopes she will decide to step aside.
“The spectacle of Justice Barrett casting the deciding vote in the president’s favor in the most important case of the century could exact an extremely high toll on the Supreme Court’s legitimacy,” said Geyh, who served as director of the American Bar Association Judicial Disqualification Project.
Robert Barnes, Ann E. Marimow, Beth Reinhard, Seung Min Kim and Alice Crites contributed to this report.