The Senate began confirmation hearings Monday for Judge Amy Coney Barrett, and Democrats know they’re unlikely to block her ascension to the Supreme Court. So they’re rolling out a supposed ethics test that if she joins the Court she must recuse herself on cases related to the presidential election.
The claim is that because President Trump nominated Judge Barrett, she has a conflict of interest in judging election cases. Senator Sheldon Whitehouse argues the standard is “whether a reasonable observer could reasonably question her participating in a dispute involving Trump’s reelection.” One thing for sure is that Mr. Whitehouse has no idea what “reasonable” means.
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This new recusal theory fits the Democratic view of the Supreme Court as a results-driven superlegislature, but it’s wrong as a judicial principle. By Mr. Whitehouse’s yardstick, should Justices Neil Gorsuch and Brett Kavanaugh have sat out cases involving President Trump’s financial documents? They ruled against him, for the record. Should Ruth Bader Ginsburg and Stephen Breyer have refused to hear Clinton v. Paula Jones?
The gold-standard analysis of High Court recusal was written by Justice Antonin Scalia in 2004, as our friends at the New York Sun remind us. Scalia had gone on a duck-hunting trip with a group that included Vice President Dick Cheney. Yet he refused to step back from a case in which Mr. Cheney, in his official capacity, was a party. Friendship, Scalia wrote, is grounds for recusal “where the personal fortune or the personal freedom of the friend is at issue,” but not “where official action is at issue.”
To the contrary, Scalia said he had an obligation not to recuse, so the Court could ensure a definitive ruling instead of a possible 4-4 split. “The petitioner needs five votes to overturn the judgment below,” he said, “and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.” Caving to media pressure to recuse, Scalia added, would encourage the press to scour the Justices’ social calendars for “increasingly silly” conflicts of interest.
Mr. Whitehouse ignores that precedent and cites a Supreme Court decision from 2009, Caperton v. Massey Coal. That case involved a justice on West Virginia’s top court who ruled in the coal company’s favor after its chairman spent $3 million helping him get elected to the bench. These “extreme facts,” Justice Anthony Kennedy wrote for a 5-4 majority, created an intolerable “probability of actual bias.”
In their dissents, Chief Justice John Roberts and Scalia eviscerated that “probability” of bias standard as hopelessly vague. Only one member of Justice Kennedy’s majority remains on the Court, so his mistake is unlikely to be repeated. In any case, Judge Barrett’s nomination does not involve “extreme facts.” There’s no financial relationship alleged.
President Trump’s nomination fulfills a constitutional norm, and an election involves official actions. If confirmed, Justice Barrett and her colleagues can assess the merits of any election lawsuit as they would any other case. The questions presented would be legal ones, such as whether a federal judge overstepped his role by ordering state officials to ignore the law and count late ballots.
The recusal push is part of a Democratic election strategy to stir outrage that the GOP is filling an open Supreme Court seat. It has no basis in law or the Court’s traditional practice. Judge Barrett would be shirking her duty if she did recuse, and she can cite as an authority no less an eminence than her old boss, Justice Scalia.
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Appeared in the October 13, 2020, print edition as ‘Barrett Should Refuse to Recuse.’