During her confirmation hearings last week, Supreme Court nominee Amy Coney Barrett refused to say if she would recuse herself from any potential cases related to the 2020 election, remarking:
But, as Jennifer Rubin notes in an op-ed she wrote for The Washington Post, that’s simply not good enough, because there would be a stench of impropriety if she didn’t recuse herself:
“The issue is not an explicit deal between Barrett and Trump, nor even her pureness of heart. It is the inevitable perception that if the election winds up in the court, her vote would be seen as hopelessly compromised. Voters know she was rushed through. Voters know Trump’s and Republicans’ expectations. How could they possibly not conclude that the rush was in case they needed her to determine the election outcome?”
No matter what Barrett may say or believe at the moment, it turns out there’s a 2009 Supreme Court ruling in Caperton v. A.T. Massey Coal Co. that would make her recusal mandatory.
According to former federal appeals court judge J. Michael Lutting, the Caperton case could not possibly be clearer when it comes to a judge hearing a case that would benefit the person who appointed them:
“Caperton involved a litigant who spent $3 million to help elect a West Virginia Supreme Court of Appeals justice, who then voted to reverse a $50 million damage award against his benefactor. The U.S. Supreme Court found that the judge should have recused himself. Writing for the majority, Justice Anthony M. Kennedy said that recusal may be constitutionally required even where a judge is not actually biased, if there is a ‘serious risk of actual bias.'”
So where would that leave Barrett? Between the proverbial rock and a hard place, Luttig concludes:
So if Barrett doesn’t recuse herself from a case involving the election of a man who nominated her to the highest court in the land, it would not only prove that she’s little more than a pawn for Trump, it could even possibly lead to her being impeached. She would then share that dubious honor with Donald Trump himself, and she might even wind up being booted off the Supreme Court, especially if Democrats retake control of the Senate.
Ms. Barrett may think she’s one step from the highest court in the land, but she’d best walk lightly when she gets there or face the consequences of her obstinance.