Democrats in the U.S. Senate will reportedly plead with Supreme Court nominee Amy Coney Barrett to make a pledge to recuse herself from any potential cases or controversies involving the resolution of the 2020 presidential election.
Those calls have taken on a timbre of distinct and timely importance after President Donald Trump himself appeared to hope the nation’s high court might play an outsize role in deciding the end result of November’s contest between himself and former vice president Joe Biden during the first presidential debate on Tuesday.
“[A]re you counting on the Supreme Court, including a Justice Barrett, to settle any dispute?” moderator Chris Wallace asked during the often sideways, insult-and-interruption-laden showdown between the two septuagenarian would-be statesmen.
“Yeah,” Trump replied–before launching into one of his pet theories regarding the prospect of alleged but as-yet unproven electoral fraud. “I think I’m counting on them to look at the ballots, definitely. I hope we don’t need them, in terms of the election itself. But for the ballots, I think so, because what’s happening is incredible.”
The 45th president’s debate comments tracked with his previous insistence that he’d rather have Barrett confirmed before the election–saying that having a 4-4 decision from the Supreme Court on an election-related case “is not a good situation.”
On Sunday, Sen. Dick Durbin (D-Ill.) addressed Trump’s repeat calls for Barrett’s swift confirmation in response to a question during an appearance on ABC’s This Week.
“[W]ill you and other Democrats request that Judge Barrett recuse herself from any consideration of the election?” host George Stephanopoulos asked.
“I certainly wish she would,” Durbin replied. “It would really help matters and it would evidence the fact that she wants to be fair in addressing this.”
The Judiciary Committee Democrat continued:
Why? Because this president has been outspoken and outrageous. To think that he would not accept the verdict of the election and that he would make it clear that he’s filling this vacancy on the Supreme Court to make sure it tips his way if there’s any election contest–that is an outrage. No president has ever said that in our nation’s history. He said it twice. He said it four years ago and now he’s saying the Supreme Court is part of his plan this time. I think that she should step forward and say that she would recuse herself from any election contest involving this president.
“And if she doesn’t?” Stephanopoulos pressed.
Durbin replied by acknowledging his party’s ultimate lack of power over the issue–saying that each senator would have to make their own determination of Barrett’s purported judicial independence.
“There is no requirement that a justice recuse in litigation affecting the president who nominated her or a member of the Senate who voted on her confirmation,” University of Tulane Law Professor Ross Garber told Law&Crime. “It would be up to the discretion of the justice.”
“Nevertheless, it’s a worthwhile question to ask during the confirmation process, as are questions about her positions on a variety of issues that may be implicated in any election-related litigation,” he continued. “I would be surprised if Judge Barrett provides clear and definitive answers to any of these questions. But asking them could give the American people important insights.”
Barrett, for her part, declined to recuse from 2020 election-related matters in a Senate questionnaire where she outlined a series of parties and cases that would prompt her recusal. Those parties include her longtime employer Notre Dame and her husband. She also said she would decline to sit on cases that have previously made their way to her court in the Seventh Circuit Court of Appeals.
“The underlying fault here is with the timing, which makes it a sham, but certainly she should recuse herself,” Sen. Richard Blumenthal (D-Conn.) said during a press conference. “In a normal world, there would be no question about it.”
Republicans have largely dismissed the Democrats’ complaints and pleas, saying that Barrett has no conflict of interest with regard to 2020 election issues and by noting that, ultimately, any recusals decisions whatsoever are entirely up to the judge herself.
While the U.S. constitutional system provides a potential justice Barrett–and any sitting Supreme Court justice–the absolute authority to make such calls, Democrats say they will still force the issue by framing the matter as a question of basic court legitimacy.
“One of the things I want to ask her is will she recuse herself in terms of any election issues that come before us because if she does not recuse herself, I fear that the court will be further delegitimized,” Sen. Cory Booker (D-N.J.) said Sunday on NBC’s Meet the Press.
[image via Chip Somodevilla/Getty Images]
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