President Trump chose Supreme Court nominee Amy Coney Barrett because she would rule in his favor in post-Election Day litigation, which could hand him a second term, say some Democratic senators.
So, Barrett, a federal appeals court judge who on Tuesday was in the midst of her second day of Supreme Court nomination hearings, must recuse herself from election-related matters that come before the high court, according to Vermont Democratic Sen. Patrick Leahy.
Barrett, during an exchange with Leahy, did not commit to recusing herself from a potential Supreme Court case in relation to a dispute between Trump and former Vice President Joe Biden, the 2020 Democratic nominee.
The last time the high court settled a presidential election dispute was in 2000 between Republican Texas Gov. George W. Bush and Vice President Al Gore, the Democratic nominee.
“I commit to you to fully and faithfully applying the law of recusal. And part of the law is to consider any appearance questions. And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach,” Barrett told Leahy.
Senate Democrats largely, if not uniformly, oppose the Supreme Court nomination of Barrett, who would effectively cement a 6-3 conservative majority. But they have little leverage to stop it.
Still, Connecticut Democratic Sen. Richard Blumenthal made similar comments to Leahy about recusal in election-related disputes.
“She must commit to recusing herself, and the reason is very simple. The president has said he is filling that seat so that the court, not the voters, can decide the election. He said it repeatedly. He chose her because of it,” Blumenthal told reporters.
“She may have made no deal, but the expectations are clear on his part, and the appearance is irrefutable. It’s more than just whether or not there’s some kind of agreement,” Blumenthal said. “It’s the appearance that is so profoundly destructive to the legitimacy of the court. And so for the sake of her credibility, as well as the public’s trust and faith in the court, she must say that she wouldn’t sit in judgment on an election.”
Blumenthal told the Washington Examiner the issue is not about politics, claiming it was instead about “integrity.”
“I believe she should commit to recusing herself because it will remove the doubts about her possible integrity,” he said.
Senate Minority Whip Dick Durbin said Barrett’s recusal response was interesting, adding, “I hope you listened to her answer because we asked her about recusal and she did not rule it in, and she did not rule it out. She said if she’s on the court, she will rely on her colleagues to help her make this decision.”
Durbin, when asked by the Washington Examiner if he would rather an eight-person Supreme Court or D.C. Circuit Court take up an election dispute instead, responded: “What it boils down to is this. This president made it clear what he wants to see in the next Supreme Court justice. He’s been explicit in his tweets. We know exactly what he wants to see in this nominee or some other nominee.”
