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WASHINGTON: Democrats urge U.S. Supreme Court nominee Amy Coney Barrett to refrain from participating in any election-related cases because of President Donald Trump’s comments that he hopes the justices can decide the result, but there is no way to force her to do so.
While US law requires judges to step aside when there is a conflict of interest or a genuine issue of bias, it leaves it up to individual justice to decide whether such a conflict exists. Aside from direct financial and personal conflicts, they rarely do.
Trump nominated Barrett on Saturday (September 27) for the vacancy created by the death of liberal Judge Ruth Bader Ginsburg on September 18. If confirmed by the Republican-controlled US Senate, Barrett would give the court a conservative 6-3 majority.
On Wednesday, Trump said he wanted the full complement of nine judges in court as soon as possible, in part because he believes the court will determine the outcome of the November 3 presidential election.
“I think this will end up in the Supreme Court, and I think it is very important that we have nine justices,” he told reporters at an event at the White House.
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The Supreme Court has determined the outcome of a US presidential election only once, in 2000, bringing President George W. Bush to the White House.
Trump indicated that the Supreme Court would rule in his favor with nine justices on board. He claimed they would be responding to an “unspecified scam Democrats are throwing away” regarding increased use of mail-in ballots as a result of the coronavirus pandemic.
Trump has repeatedly and without evidence attacked voting by mail, a long-standing feature of the American election.
“ETHICAL COMPLICATION”
Senate Democrats say they will investigate Barrett on the issue during his confirmation hearing before the Senate Judiciary Committee in the hope that he will agree to step aside in certain cases.
“This will be hotly debated by members of the judicial committee as well as legal ethicists, but I suspect that many of us will end up pushing that question anyway,” committee member Democratic Senator Chris Coons said in an interview. with NPR last week.
He added that “all standards of judicial conduct would suggest that when you have a complicated relationship, where you can say that you have an ethical complication as a judge, you should recuse yourself.”
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White House Chief of Staff Mark Meadows told CNN last week, before Barrett was officially appointed, that the nominee would not have to recuse herself and that the issue had not come up during interviews.
During previous Senate hearings, Supreme Court candidates have routinely refused to compromise on how they would handle cases that might come before them.
Federal law requires a judge to depart from cases “in which his impartiality could reasonably be questioned.” In a 2011 report, Conservative Chief Justice John Roberts said he had “complete confidence in the ability of my colleagues to determine when disqualification is warranted.”
Legal experts told Reuters that depending on the way the law has been interpreted so far, the new judge does not have to excuse herself from any electoral matter.
But New York University Law School legal ethicist Stephen Gillers noted that if a decisive election issue is brought to justice, Democratic candidate Joe Biden could be justified in filing a motion asking him to recuse himself. .
“I think it would be a persuasive argument in this unique circumstance,” he said.
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He noted that in 2000, when the Supreme Court decided the election in favor of Republican Bush, none of the justices was appointed by either candidate, although Democratic candidate Al Gore was vice president of President Bill Clinton, who appointed both Ginsburg and the Judge Stephen Breyer. .
This time, there would be three judges on the bench appointed by Trump himself.
Both liberal and conservative judges have been pressured by critics in the past to recuse themselves in cases with perceived conflict. Litigants can file motions seeking disqualification, but they rarely do so.
In 2004, the environmental group Sierra Club asked conservative judge Antonin Scalia to step aside in a case involving then-Vice President Dick Cheney, a friend of the judge. Scalia refused, saying his impartiality could not reasonably be questioned.
During the 2016 presidential race, the liberal Ginsburg criticized then-candidate Trump as a “phony,” prompting screams from conservative critics of the bias. Ginsburg later expressed regret for his comments, but did not shy away from any cases involving Trump.
Despite calls from some conservatives to recuse himself, liberal Justice Elena Kagan participated in a 2012 ruling upholding President Barack Obama’s Affordable Care Act, the Obamacare health law. Kagan had served as Obama’s main advocate on the Supreme Court when the law was enacted in 2010, but said she played no role in its conception.
Kagan, appointed to the court by Obama in 2010, recused herself from other cases she had worked on in the Obama administration.
Judges routinely step aside when they have financial conflicts, such as owning shares in companies with court cases.
