Democrats’ latest concoction: Barrett should recuse herself on election cases

by WorldTribune Staff, October 13, 2020

Senate Democrats who have come to the realization that they can not block Judge Amy Coney Barrett’s confirmation to the Supreme Court are now demanding that, if she is confirmed, she commit to recusing herself in any cases relating to the presidential election.

The Democrats claim that, since President Donald Trump nominated her, Barrett has a conflict of interest in judging election cases.

Leftist Sen. Sheldon Whitehouse of Rhode Island argues the standard is “whether a reasonable observer could reasonably question her participating in a dispute involving Trump’s re-election.”

The Wall Street Journal Editorial Board noted: “One thing for sure is that Mr. Whitehouse has no idea what ‘reasonable’ means.”

The newly-concocted recusal theory “fits the Democratic view of the Supreme Court as a results-driven superlegislature, but it’s wrong as a judicial principle,” the Journal noted. “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 Journal pointed to an analysis of Supreme Court recusal written by Justice Antonin Scalia in 2004.

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.’ ”

The Journal noted: “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.”

Trump’s nomination of Barrett “fulfills a constitutional norm, and an election involves official actions,” the Journal wrote. “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 by Democrats is part of their 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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