Schumer Calls On Barrett to Recuse Herself from Health Care, Election Cases if Confirmed

October 12, 2020 Updated: October 12, 2020

Senate Minority Leader Chuck Schumer (D-N.Y.) said Sunday that President Donald Trump’s nominee to the Supreme Court, Judge Amy Coney Barrett, should, if confirmed by the Senate, recuse herself from any cases involving the outcome of the presidential election or the Affordable Care Act (ACA).

Speaking at a press briefing in New York, Schumer said Barrett, 48, should step aside from the cases due to “serious conflicts of interest.” Barrett was nominated last month by Trump after Justice Ruth Bader Ginsburg’s death.

“This nominee comes before us with serious conflicts of interest and we’re here today to say that given Judge Barrett’s conflicts of interest she should recuse herself from any decision involving the Affordable Care Act and its protections and any decision related to the election that we will have on Nov. 3,” Schumer told reporters.

“Judge Barrett should immediately do the bare minimum and pledge to recuse herself,” he added.

Schumer made the comments in response to Barrett releasing her prepared remarks on Sunday ahead of Monday’s confirmation hearing before the Senate Judiciary Committee. The session will last 4 days and is a key step before a final full Senate vote by the end of October on her nomination for a lifetime job on the court.

It comes after Barrett said last month that she won’t pledge to step aside from cases related to the 2020 election amid pressure from Democrats.

Responding to a Senate Judiciary Committee questionnaire (pdf) late September, Barrett said she would use a “recusal list” to identify and avoid potential conflicts. Her response did not identify any categories of cases but said it would include cases where her husband Jesse Barrett and her sister Amanda Coney Williams, both attorneys, participated in any stage of the proceedings. The list, she said, would also include cases involving Notre Dame University, where she is currently an adjunct professor, or affiliated entities.

She also added that she will step away from cases in which she had participated in as a judge on the 7th Circuit Court.

Judges routinely recuse themselves from cases. The due process clauses of the Constitution requires judges to recuse themselves when the judge has a financial interest in the case outcome, and when there is a strong possibility that the judge’s decision will be biased, according to Cornell Law School.

Under federal law, however, an individual justice has the right to decide whether a conflict of interest or genuine question of bias exists. There is no way to force Barrett to recuse herself from any cases.

Judge Amy Coney Barrett
Judge Amy Coney Barrett on Capitol Hill in Washington on Oct. 1, 2020. (Erin Scott-Pool/Getty Images)

The GOP’s leadership said they are trying to get Barrett confirmed before Election Day on Nov. 3.

Democrat critics have said Republicans should hold off on trying to confirm Barrett before the election. They have alleged that they are engaging in hypocrisy for doing so because GOP senators blocked confirmation hearings for Merrick Garland, who was tapped to replace the late Justice Antonin Scalia in 2016.

Garland was nominated by former President Barack Obama to replace Scalia after he died. The nomination was blocked by Senate Majority Leader Mitch McConnell (R-Ky.), who said that Republicans wouldn’t consider Obama’s nominee because they felt the vacancy should be filled by whoever won the 2016 election.

However, McConnell said last month that the situation was different then because the Senate and the presidency were held by different parties. Republicans currently control both.

Schumer said Sunday that Barrett should, if confirmed, step aside from the ACA case, which is scheduled to be argued at the court a week after the presidential election, on Nov. 10. Trump and Republican-led states are seeking to invalidate the healthcare law often called Obamacare.

In 2017, Barrett wrote that when Chief Justice John Roberts upheld the ACA, he betrayed the tenets of conservative legal analysis.

Schumer told reporters that Barrett’s record and previous statements “raise serious questions as to whether she can rule fairly at all.”

“It’s clear there’s only one conclusion when it comes to Justice Barrett in regards to her voting on repealing ACA and on deciding the legitimacy of the presidential election. Recusal. Recuse. This is what she should do,” Schumer said.

Sen. Mike Lee (R-Utah) said in an interview with ABC that the decision of whether to recuse is up to Barrett and that he has “every confidence that she’ll make the right decision.”

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) told reporters that he thinks it was a “ridiculous” suggestion that a justice would not be able to hear election-related cases “because she was nominated in an election year.”

“There is no legal disqualification. She doesn’t have a legal conflict. She doesn’t decide the election. She’s gets to vote like everybody else,” Graham said.

Meanwhile, the American Bar Association—which Schumer has previously described as the “gold standard” for evaluating judicial nominees—on Sunday gave Amy Coney Barrett its highest rating: “Well Qualified.”

Janita Kan, Jack Phillips, and Reuters contributed to this report.