A 2009 Supreme Court ruling may require Barrett to recuse herself from 2020 election cases

Alli

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A 2009 Supreme Court ruling may require Barrett to recuse herself from 2020 election cases​

J. Michael Luttig
Oct. 17, 2020 at 3:53 p.m. CDT
Supreme Court nominee Amy Coney Barrett during the Senate Judiciary Committee hearing on Wednesday.

Supreme Court nominee Amy Coney Barrett during the Senate Judiciary Committee hearing on Wednesday. (Demetrius Freeman/The Washington Post)
At her confirmation hearings this past week, Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise. Barrett herself almost certainly does not know whether recusal is required and will not know until she is actually confronted with the question.
But as Barrett must already understand, her decision was made exponentially more difficult by Caperton v. A.T. Massey Coal Co., an inartful and mischievous 5-to-4 case decided over a decade ago by the court she will soon join. The ruling would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.
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.”
Based upon its appraisal of the “psychological tendencies and human weakness" of all of us, the majority concluded that the campaign spending had “significant[ly] and disproportionate[ly]” influenced the judge’s election while the case was pending or imminent, resulting in a perceived serious risk that the judge was biased in favor of his contributor. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent — a man chooses the judge in his own cause,” the court said.
The dissenters warned that the majority would come to regret its new test. “At the most basic level,” wrote Chief Justice John G. Roberts Jr., “it is unclear whether the [majority’s] new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” Justice Antonin Scalia, while criticizing the majority for constitutionalizing the judge’s recusal decision “in a manner ungoverned by any discernable rule,” wrote that “in the best of all possible worlds, [judges should] sometimes recuse [themselves] even where the clear commands” of the Constitution don’t require it.
The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether or not the judge recognized it.
The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.
Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Capertonpale.
But while Caperton would seem to apply to Barrett’s decision with proverbial vengeance, only the Supreme Court knows whether this precedent applies so as to require her recusal from the 2020 presidential election cases. And only Barrett will know whether, in Scalia’s words, even if Caperton may not require her recusal, it counsels that recusal.
The art of judging is to divine from extant law and, when necessary, to fashion a principled rule of law that is sufficiently broad to decide the case before the court but sufficiently narrow that the rule will not decide cases for which a different rule should apply. The art is practiced by many but accomplished by few. One would think that the Supreme Court surely must have perfected this art by now, but, truth be known, it often eludes even our highest court — as it did in Caperton.
Unfortunately, inartful Supreme Court decisions are no less the law of the land than artful ones. Now Barrett, the Supreme Court and the country may have to reap the consequences.
Sheldon Whitehouse: A Justice Barrett must recuse herself from deciding the future of the president who picked her
Jennifer Rubin: Barrett’s refusal to recuse on the election is disqualifying
The Post’s View: These confirmation hearings are not really about Amy Coney Barrett
Jennifer Rubin: Barrett seeks refuge in ignorance and evasion
Paul Waldman: Amy Coney Barrett thinks she can fool us
Jennifer Rubin: Three lessons from the Barrett confirmation hearings
 

lizkat

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Justice Antonin Scalia, while criticizing the majority for constitutionalizing the judge’s recusal decision “in a manner ungoverned by any discernable rule,” wrote that “in the best of all possible worlds, [judges should] sometimes recuse [themselves] even where the clear commands” of the Constitution don’t require it

Will be interesting to see whether Barrett will distance herself from her old mentor's counsel in the near future, if the high court is called upon to resolve issues related to the Nov 3 elections.

That's assuming these idiots on the JC go ahead and vote to put the nomination out to the full Senate for a vote on Barrett's confirmation before Election Day and even as early voting has already commenced. Which apparently the JC Republican Senators do mean to do, come hell, high water or the disapproval of a majority of Americans on just the timing of that vote.
 

Alli

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She wouldn’t commit to recusing herself during the hearings. Even if there is precedent and law, she won’t do it.
 

SuperMatt

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She wouldn’t commit to recusing herself during the hearings. Even if there is precedent and law, she won’t do it.
It’s funny that Republican senators were crying “Dems are attacking you for your faith” even though they weren’t... they guessed wrong there. There is PLENTY to criticize without even going there. I think her opinions read as such: “‘I already decided this; now it’s time to write something to make it sound like there’s a legal basis for my decision.”
 

lizkat

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It’s funny that Republican senators were crying “Dems are attacking you for your faith” even though they weren’t... they guessed wrong there. There is PLENTY to criticize without even going there. I think her opinions read as such: “‘I already decided this; now it’s time to write something to make it sound like there’s a legal basis for my decision.”

I'm still pretty fried that Barrett wouldn't even cop to the fact that 18 US Code § 594 even fucking EXISTS:

[ $3 to the food pantry for that language. I've doubled down and am surely going for broke this month. ]

Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both.

Senator Klobuchar wasn’t even asking Barrett if there is some question about who or what may be properly termed “voter intimidation” —as may pertain most recently in Minnesota where help-wanted ads have been run by local right wing outfits looking for people w/ “Special Forces experience” to serve as "poll watchers”.

Klobuchar only asked if Barrett understood that voter intimidation itself is a crime under the cited statute. The only correct answer was "Yes, Senator". Maybe "yes, ma'am" would also have been okay, all things duly considered.

Yet Barrett again gave her robotic reply about being unable to comment since yada yada yada must await a challenge to the law and read up on it and consult w/ clerks and colleagues and so forth. WTF.
 

Alli

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Yet Barrett again gave her robotic reply about being unable to comment since yada yada yada must await a challenge to the law and read up on it and consult w/ clerks and colleagues and so forth. WTF.
If she has to consult with her clerks on every question, maybe we should be nominating one of them to the Supreme Court.
 
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