Democrats’ Attempts to Get Barrett to Recuse Herself Are to ‘Influence’ Case Outcome: Law Professor

October 15, 2020 Updated: October 15, 2020

George Washington University law professor Jonathan Turley said Thursday that Democrats’ attempts to get Supreme Court nominee Amy Coney Barrett to recuse herself from certain cases is inappropriate because the rules for recusal do not apply to the issues the senators asked the judge about.

During the confirmation hearings this week, one of the key issues Democrats have focused on is attempting to get Barrett to commit to recusing herself from cases that President Donald Trump has spoken about in public, including any cases related to Obamacare or the upcoming Nov. 3 election.

Sen. Patrick Leahy (D-Vt.)  reiterated that point Thursday morning on the third day of the hearings, saying that Trump by stating he wants the ninth Supreme Court Justice to be confirmed before Election Day, the president has called Barrett’s impartiality into question.

“Now, it’s no secret why President Trump is so desperate to install Judge Barrett before the election,” said Leahy. “He said he expects his nominee to side with him in any election-related dispute. He’s made it impossible for Americans not to question Judge Barrett’s impartiality, If she has to vote on such a case, as a Justice.”

Leahy and other Democrats on the Senate Judiciary Committee have said they were disappointed that Barrett would not commit to recusing herself.

“If she decides in the president’s favor in any election-related dispute, It’s going cause grievous harm to both the court and need our democracy,” said Leahy. “A judge should not place the integrity of either in such jeopardy. I worry about what is happening in these processes that we are going to diminish the respect that all Americans should have for the federal judiciary,” he added.

During the hearings, Barrett has not suggested she would vote in the president’s favor and has not committed to recusing herself from certain cases, Democratic members of the committee have called her integrity into question.

Turley told “Fox & Friends on Thursday: “The judicial rules on recusal are meant to deal with issues where you have a personal or financial interest in the case or you were involved in the underlying litigation. None of those apply.”

“It would be facially ridiculous for a nominee to take herself out of a major challenge later just because she was nominated, confirmed before an election,” he explained, “and you wouldn’t want that because … what the Democratic senators were doing was trying to influence the outcome of any case by getting her to remove herself and reduce the court to eight.”

“That, by the way, could result in a tie, which is not what you want in a major traumatic moment for this nation.,” Turley added.

Leahy and Turley were referring to Trump’s comments on Sept. 23 where he suggested the Supreme Court may have to make a ruling on the Nov. 3 presidential election, therefore a new justice should be confirmed to the high court to replace late Justice Ruth Bader Ginsburg before Election Day. He didn’t say how that tie would be broken or how the case would be decided.

Trump has been repeatedly questioning the reliability of the election infrastructure, including raising concerns about voter fraud due to the push for universal mail-in ballots. Barrett said as a judge she wanted to “stay out” of such a “political controversy.”

“I think it’s better if you go before the election because I think this scam that the Democrats are pulling—it’s a scam—the scam will be before the United States Supreme Court,” Trump told reporters at the White House.

“I think having a 4-4 situation is not a good situation if you get that. I don’t know that you’d get that. I think it should be 8-0 or 9-0, but just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”

Janita Kan contributed to this report