Barrett Should Reject the Democrats’ Recusal Gambit

Supreme Court nominee Judge Amy Coney Barrett is flanked by her husband Jesse and White House Counsel Pat Cipollone at the start of the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., October 13, 2020. (Shawn Thew/Reuters)

The Wall Street Journal has a solid editorial today on why Judge Amy Coney Barrett should not cave in to Senate Democrats’ specious demands that, if confirmed, she commit to recusing herself from any cases related to the 2020 election process.

If the last few years have taught us anything, it is that top public officials should not disqualify themselves from exercising their high responsibilities based on hypothetical conflicts of interest. They should always wait until a case or controversy arises, so that any purported conflict can be assessed concretely.

I continue to believe it was a mistake for then-Attorney General Jeff Sessions to recuse himself in a sweeping manner, in advance of any actual prosecutions, from anything having to do with the 2020 election and Russia. He should have recognized (as he did) that there were potential conflicts that could have to be addressed. He could then have recused himself, case-by-case, from the actual criminal prosecutions against his fellow Trump campaign officials – e.g., Michael Flynn, Paul Manafort and Rick Gates. But there was no need for him to recuse from a counterintelligence investigation (an information gathering exercise, not a prosecution) of Russia’s interference in the election; and there never was a Donald Trump prosecution warranting recusal.

By recusing prematurely and too broadly, Sessions opened himself up to Democrat claims that he could not function as attorney general, should not participate in the selection of a new FBI director, etc. It hurt him badly, and contributed to making the recusal a recurring dispute with the president (though that was mostly the president’s doing).

Moreover, Supreme Court justices have a history of waiving off even concrete conflicts. The Journal covers a good deal of this today. Our Ed Whelan made a very strong case that Justice Kagan should have recused herself, but did not, from the Obamacare case. She had been the Obama administration’s solicitor general and advised the administration on how to defend against challenges to the Affordable Care Act.

A particularly noteworthy instance of non-recusal is Justice Breyer’s decision not to disqualify himself from the Court’s Sentencing Guidelines cases, decided in 2005. As then Duke Law Professor (now Berkeley Law Dean) Erwin Chemerinsky put it at the time, “There’s no doubt that Stephen Breyer is one of the ‘parents’ of the federal sentencing guidelines.” Breyer had been chief counsel to the Senate Judiciary Committee and a laboring oar in drafting and passing the 1984 Sentencing Reform Act that established authority for the guidelines. Breyer was then appointed to the first Sentencing Commission, which, as Chemerinsky put it, “created the guidelines in the very structure at issue” in the constitutional challenges before the Court. Yet, Breyer participated and wrote a significant part of the Court’s opinion in the case (see United States v. Booker).

As the Journal observes, if the Supreme Court is called on to decide election-related cases in the next few weeks, they are likely to be involved issues that do not necessarily favor President Trump or Vice President Biden, even though one partisan side or another may be involved in the litigation. These are such issues as what ballots should be tabulated – e.g., should ballots mailed in before Election Day but not received until afterwards count, or do courts have the authority to extend voting deadlines that have been fixed by state legislatures? It would be better for the country if the Supreme Court rules on such matters before Election Day so it is not put in the position of appearing to decide the election if it must rule afterwards.

Either way, though, the election cases create no conflict for Barrett. Nor do they present anything close to some of the clear conflict situations that sitting justices nevertheless decided did not warrant recusal.

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