Senate Democrats push Amy Coney Barrett to recuse herself from a potential presidential election case

WASHINGTON - As the confirmation hearings for Amy Coney Barrett proceed this week, Democrats on the Senate Judiciary Committee are pushing the Supreme Court nominee to answer whether she would recuse herself from considering cases related to this fall’s presidential election.

Pointing to President Donald Trump’s comments linking her confirmation with the need for nine justices in case of a contested White House race, Senate Democrats said his remarks raise serious concern about public perception of her impartiality.

“Your participation . . . in any case involving Donald Trump’s election would immediately do explosive enduring harm to the court’s legitimacy and to your own credibility,” Sen. Richard Blumenthal, D-Conn., said in his opening statement Monday at Barrett’s confirmation hearing. “You must recuse yourself.”

Trump has urged the Senate to quickly confirm his nominee, saying a ninth justice may be necessary if a case involving his reelection goes to the high court.

“I think this will end up in the Supreme Court,” the president said at the White House two days before naming Barrett as his choice. “And I think it’s very important that we have nine justices. 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. And I think having a 4-4 situation is not a good situation.”

When asked at last month’s presidential debate by moderator Chris Wallace if he was counting on the Supreme Court, including a potential Justice Barrett, to settle an election dispute, Trump responded: “Yeah. I think I’m counting on them to look at the ballots, definitely.”

Democrats and ethics experts point to a federal statute that requires judges to recuse themselves from any proceeding in which their “impartiality might reasonably be questioned” by the public.

“In light of Trump’s public statements, it will reasonably appear to the public that Trump offered her the job with the implicit understanding that just weeks later she would help him keep his,” said Stephen Gillers, an expert on judicial ethics at New York University Law School.

“In no other case has a justice been asked to decide if the appointing president can continue to be president,” Gillers said, describing the ethical problem facing Barrett as clear and the recusal decision as “easy.”

Republicans reject that argument.

“Pledging a decision on a particular matter that may come before the court - including the decision of whether to hear a case or not - for political reasons, as Senate Democrats are asking Judge Barrett to do, would violate the bedrock constitutional principle of judicial independence,” White House spokesman Judd Deere said in a statement Monday.

Senate Majority Leader Mitch McConnell, R-Ky., has called recusal concerns part of “made-up attacks” Democrats have launched against a well-qualified judicial candidate.

“Democrats are demanding that Judge Barrett commit in advance to recuse herself from entire categories of cases, for no reason,” McConnell said this month during an extended Senate floor speech.

“Nobody has ever suggested that Supreme Court justices should categorically sit on the sidelines until the president who nominated them has left office,” he added.

Michael McConnell, a former federal judge now teaching at Stanford University Law School, said in an interview that “it would be unprecedented for a justice to recuse because of a statement made by someone else - even if the statement was made by the president of the United States.”

“I’m confident that Amy Barrett will decide cases without regard to what President Trump has said,” said McConnell, who is not related to the Senate leader and was appointed to the bench by former president George W. Bush. “If anything, she and [Chief Justice John G. Roberts Jr.] and others on the court would bend over backwards to be sure that the decision is something the public would have confidence in.”

But Senate Democrats said that Trump’s comments put Barrett in an impossible situation.

“Republicans want to rush Barrett through in time to deliver what could be the key vote on behalf of the president who chose her,” Sen. Sheldon Whitehouse of Rhode Island wrote in an op-ed for The Washington Post. “For Barrett, this is a test of integrity, both for herself and for our system of government. She must commit to recuse herself from any election-related dispute.”

Several aides to Judiciary Committee Democrats said they expect the issue of an election case recusal to be a central question Barrett will face this week.

On Monday, Blumenthal placed Barrett’s decision on recusal at the heart of a topic that has preoccupied the chief justice: The reputation of the court in an era of polarized politics.

“I’m really deeply concerned that the Supreme Court is losing the trust and respect of the American people,” Blumenthal said during the hearing. “The authority of the Supreme Court depends on that trust. It has no army or police force to enforce its decisions. The American people follow the Supreme Court’s commands, even when they disagree, because they respect its authority. Now, President Trump and the Republican Senate are eroding, indeed destroying, that legitimacy.”

Barrett played a minor role in Bush v. Gore, the only contested presidential election to come before the Supreme Court. As an associate in a Washington law firm, she worked for a week as part of a GOP effort to defend the integrity of thousands of absentee ballots that had been challenged by a Democratic voter.

Roberts and Justice Brett Kavanaugh also played roles in Bush v. Gore - meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the 2000 presidential contest.

Ethics experts said their work on that case would not present a barrier to participating in another involving a contested presidential election. But Trump’s statements put Barrett in a unique position, several said.

Democrats and ethics experts noted a recent Supreme Court case, Caperton v. Massey, found that a judge’s failure to recuse in a state case resulted in violation of due process rights of the litigants.

In that 5-to-4 case, Justice Anthony Kennedy ruled that a judge was required to recuse because of assistance that had recently been provided in electing him to the state court, despite the judge’s claim that he was “impartial.”

Kennedy did not say that in fact the state court judge was biased but instead concluded “that there is serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case . . . when the case was pending or imminent.”

In a new questionnaire submitted to the Senate Judiciary Committee in connection with her Supreme Court nomination, Barrett said she would recuse herself from cases involving her husband, Jesse Barrett, and her sister Amanda Coney Williams, both of whom are attorneys.

Barrett also said she would recuse herself from cases that involve the University of Notre Dame, where she has been a law professor since 2002, and any matters she participated in while serving in her current role as a judge on the U.S. Court of Appeals for the 7th Circuit. She did not address recusal from any case related to the presidential election.

In the end, the decision of whether to do so would be solely up to Barrett.

Said Gillers: “There is no enforcement mechanism other than the conscience of the justice.”

While ethics rules require all federal judges to recuse from a case where their impartiality could reasonably be questioned, the rules are not enforceable for a Supreme Court justice in the way they would be for a lower-court federal judge, said Charles Gardner Geyh, a judicial ethics expert at Indiana University’s school of law.

If she is put in that position, Geyh said he hopes she will decide to step aside.

“The spectacle of Justice Barrett casting the deciding vote in the president’s favor in the most important case of the century could exact an extremely high toll on the Supreme Court’s legitimacy,” said Geyh, who served as director of the American Bar Association Judicial Disqualification Project.

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The Washington Post’s Ann E. Marimow, Beth Reinhard, Seung Min Kim and Alice Crites contributed to this report.