Barrett refuses to say if she would recuse herself from election-related cases

Judge Amy Coney Barrett on Tuesday refused to say if she would recuse herself from potential cases related to the November election if she is confirmed to the Supreme Court. 

Sen. Patrick Leahy (D-Vt.) asked Barrett if she would recuse herself “to protect confidence in both you and the court.”

“[President Trump] expects you to decide with him in an election dispute,” Leahy said. “The recusal statute … requires recusal where impartiality might reasonably be questioned.”

Leahy is one of several Democrats who have pledged to raise the issue during the two-day question-and-answer session during Barrett’s confirmation hearing to succeed the late Justice Ruth Bader Ginsburg.  

“It always happens after consultation with the full court, so I can’t offer an opinion on recusal without short-circuiting that entire process,” Barrett said. 

When Leahy noted that Trump appeared to believe his nominee would side with him in an election dispute and asked if she would recuse herself because of that, Barrett sidestepped again. 

“I commit to you to fully and faithfully applying the law of recusal, and part of that law is to consider any appearance questions. … But I can’t offer a legal conclusion right now about an outcome of the decision I would reach,” Barrett said.

The issue of whether Barrett would step back from cases related to the outcome of the November election comes as Trump has repeatedly refused to commit to a peaceful transition of power if he loses the presidential election next month. 

He’s suggested that the election could be litigated at the Supreme Court and said he pushed for a quick nomination and confirmation because he wants all nine justices on the bench for such a decision. If confirmed, Barrett would become the third justice appointed to the high court by Trump, following Neil Gorsuch and Brett Kavanaugh. 

“I think this [election] will end up in the Supreme Court, and I think it’s very important that we have nine justices,” Trump told reporters late last month. 

Barrett stressed on Tuesday that she had not discussed any case, including one that could determine the outcome of the election, with Trump or anyone else on his staff.  

“I have had no conversation with the president or any of his staff on how I might rule in that case. It would be a gross violation of judicial independence,” she said. “I also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result.”

Discussion about the election potentially going to the Supreme Court comes as Democrats are quick to note Bush v. Gore. The controversial 2000 Supreme Court decision ended a Florida recount and ultimately decided the outcome of that year’s presidential election. 

Sen. Chris Coons (D-Del.), a member of the committee, asked Barrett about recusing herself from election-related cases during their phone call prior to the hearing, but said she declined to say what she would do.  

Coons asked Barrett publicly on Tuesday if she would recuse herself from any case arising from a dispute in the presidential election. Barrett declined to say if she would recuse but that she would “seriously undertake” the process of deciding if she should recuse.

“I certainly hope that all members of the committee have more confidence in my integrity to think I would allow myself to be used as a pawn to decide this election for the American people,” Barrett said.

“I will consider all factors that are relevant to that question. Relevant to that question that requires recusal when there’s an appearance of bias. …I promise you that if I were confirmed and if an election dispute arises … that I would very seriously undertake that process and I would consider every relevant factor,” she added.

Barrett, in documents given to the Judiciary Committee, offered some details on what cases she would automatically step back from, but the election was not one of those items.  

According to the documents, Barrett would recuse herself from cases involving her husband or her sister, both attorneys; cases involving Notre Dame University, where she was a law professor; or matters that she participated in while serving as a judge on the U.S. Court of Appeals for the 7th Circuit. 

Leahy is unlikely to be the only Democratic senator to raise recusal with Barrett on Tuesday, which marks the second day of the hearing for her Supreme Court nomination.  

Sen. Richard Blumenthal (D-Conn.) urged Barrett during his opening statement on Monday to recuse herself. He told reporters during a conference call on Tuesday morning that he planned to raise the issue again. 

“You know, I in effect demanded, I said you must recuse yourself and I will repeat it today and I’m going to spell out why,” Blumenthal said. 

Sen. Dick Durbin (Ill.), the no. 2 Senate Democrat, said he also plans to ask Barrett to recuse herself. But, he added that he did not expect her to commit to doing so. 

“I would be shocked if she did because of statements that have been made by the Republican side,” she said.

–Updated at 3:24 p.m.