President Trump has selected Amy Coney Barrett to buttress his attack on our democracy. He selected her as his nominee for the explicit purpose of providing a fifth vote on the Supreme Court to wrest the election from the voters. It is blatantly inappropriate for a president to select or the Senate to confirm a nominee for the purpose of producing a specific outcome in a matter involving the President that the President expects to come before the Court. That impropriety is magnified when the President’s stated goal is to use the nomination to keep himself in power.
For that reason alone, no nomination to fill Justice Ginsburg’s seat should proceed until completion of the election and inauguration of the president.
If the Senate proceeds now, Judge Barrett must commit to recusing herself from any matter involving the 2020 election. Her participation would tarnish the Court beyond repair and threaten the orderly resolution of the election. If she voted in favor of Trump, the public could never be certain that she was not bowing to Trump’s political expectations or, in the worst case, consummating a corrupt deal to win selection to the Court. Conversely, if she voted against Trump, his supporters might suspect that she had bent over backward to avoid the appearance of bias. In either event, the appearance of partiality would prove devastating for the Court and the country if the Court were called on to resolve a divisive election.
Judge Barrett’s only choice is to commit to recuse herself.
Trump has conducted a relentless and baseless campaign to attack the validity of mail-in ballots with the clear intent to undermine the legitimacy of any vote count that he loses. Rather than concede, he will contest the vote and push the resolution into court where he expects the Supreme Court to award him four more years in office. As recently as his debate with Joe Biden, Trump stated his expectation that the Supreme Court will “look at the ballots.” Trump has made clear that he is unwilling to risk a 4-4 tie and wants Barrett’s vote to ensure a five-member majority in his favor.
Trump’s statements require Barrett’s recusal. 28 U.S.C. 455(a) requires “[a]ny justice” to “disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” Importantly, this provision does not require the existence of actual bias. Rather, it imposes an objective standard that asks whether a reasonable person could perceive that a justice was not impartial. It turns on the appearance of partiality. The central purpose of section 455(a) is to promote public confidence in the integrity of the judicial process.
By openly broadcasting his desire to appoint a justice to the Court who can break a 4-4 tie in his favor, then selecting Judge Coney Barrett, and then pushing to have her confirmed in the unreasonably short period before the election, Trump has made the case for a reasonable person to doubt Judge Coney Barrett’s impartiality in Trump-related election matters. The public cannot count on her impartiality.
The Supreme Court’s practice is to allow each justice to decide for themselves, without review, whether to recuse in any particular matter and to do so without explanation. Because justices rarely write opinions explaining their recusal decisions, there is little precedent to guide or constrain them. Most recusals that we know about are driven by a financial conflict, prior involvement in a matter, or a personal relationship. All of those reasons for recusal pale in significance when compared to the threat that would be posed by Barrett’s participation in deciding whether Trump should remain president.
While presidents frequently appoint justices they hope will rule in their favor on major issues, such as reproductive choice, civil rights, or criminal procedure, Trump has crossed the line by explicitly stating his intent to select a justice who will rule in his favor in a matter he will be involved in personally in a matter of weeks.
Because there will be no check on Barrett’s participation once she is confirmed, she must commit at her confirmation hearing to recuse herself from all matters directly or indirectly affecting President Trump’s reelection.
1. Before your selection, President Trump stated that he wanted to select a justice who would break a 4-4 tie in his favor in litigation involving mail-in ballots. He then nominated you and has made it clear that it is imperative to confirm you before the election. He has also stated as recently as the presidential debate that it is important to have you confirmed because he expects the Supreme Court “to look at the ballots” in the presidential election.
Have you had any conversation, whether with the President, his staff, Members of the Senate or their staff, or anyone else, about your participation in matters related to the 2020 election?
2. 28 U.S.C. 455(a) requires a justice to recuse herself whenever her impartiality might reasonably be questioned. Hasn’t the President — through his repeated public statements about your role in litigation regarding his reelection — made it reasonable to question your impartiality in any matter involving his reelection? Hasn’t he created the appearance of partiality?
3. Do you think it is appropriate for a president to announce that he is selecting a Supreme Court nominee for the purpose of ruling in his favor in litigation regarding his reelection, as President Trump has done?
4. Will you commit to recusing yourself from any matter involving President Trump’s reelection?