Amy Coney Barrett's Supreme Court Nomination Sets Up Battle Over Her Role in Election Lawsuits

Senate Democrats and legal experts are calling on Supreme Court nominee Amy Coney Barrett to recuse herself from any potential litigation tied to the upcoming election—legal challenges which President Donald Trump has already publicly stated he expects to happen after Election Day.

Several Democratic senators, including Vermont's Patrick Leahy and Virginia's Tim Kaine, say Barrett—or any nominee expedited through the Senate before November 3— cannot possibly be viewed as impartial in potential legal challenges over the election. Law ethics groups say U.S. Circuit Court Judge Barrett, who Trump nominated Saturday evening, must recuse herself in order to "faithfully and impartially discharge and perform all the duties" of being on the Supreme Court.

Barrett has repeatedly dismissed accusations of bias and impartiality. But Senate Democrats say Trump's insistence the election is "rigged" and guaranteed to "end up in the Supreme Court" is evidence enough that his third nominee should play no part in election challenges. And Senate Republicans' controversial decision to push a nominee through confirmation just weeks before the election has drawn scorn from congressional Democrats.

Citizens for Responsibility and Ethics in Washington (CREW) Executive Director Noah Bookbinder told Newsweek Saturday Barrett "is not legally bound to make any kind of commitment now and she's not bound to recuse herself if and when she were to become a justice."

"Other judges are bound by a code of ethics, councils can evaluate their conduct, but the Supreme Court does not have their own code of ethics...there's not a lot to do to bind a justice to do the right thing ethically," Bookbinder said, adding that the "vast discretion given to justices" is exactly the reason Republican senators should insist on a recusal commitment at this stage—something he said is unlikely to happen.

Critics note that the 2000 presidential election between Democrat Al Gore and Republican George W. Bush was decided amid weeks of legal squabbling that ultimately concluded with the court deciding in Bush's favor.

"I think in order to avoid an appearance of bias, you have to recuse yourself," Kaine told CNN Friday. "No one nominated in this process will be viewed as impartial. That person sadly cannot be viewed as impartial on matters dealing with the presidential election—especially after the president said he's got to get a ninth justice on the court to resolve these likely election disputes."

"Whoever sits on the seat is going to be terribly conflicted because no matter what they do people are going to be watching," Leahy told CNN Friday.

Trump, speaking on Fox News earlier this month, acknowledged that he wants a ninth Supreme Court justice before Election Day for that very reason. He has pointed to minor ballot problems in states like Pennsylvania as a preemptive reason to believe the high court may ultimately end up deciding the election.

"I think this will end up in the Supreme Court. And I think it's very important that we have nine justices," Trump said. "It's better if you go before the election, because I think this, 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."

CREW director Bookbinder said that Senate Judiciary Committee Chairman Lindsey Graham has given no sign Republicans are going to "take this process seriously," particularly given that Trump's nominee had unanimous GOP member support "before the nominee was even named."

According to the National Constitution Center's history of judicial disqualification, Supreme Court justices have recused themselves from cases throughout history—particularly when there are financial conflicts of interest present.

Associate Justice Elena Kagan, nominated by Barack Obama in 2010, recused herself from 28 of 78 cases in her first year, including the Fisher v. University of Texas affirmative action case. This was because of her previous role as Solicitor General, a precedent set by previous justices who may have had conflicts of interest in cases heard shortly after their time in a given White House administration. Thurgood Marshall, the legendary lawyer and Supreme Court justice from 1967 until 1991, did the same during his first year on the high court.

The White House rebuked critics calling for Barrett or any other Trump pick to recuse themselves, with Chief of Staff Mark Meadows saying "no" outright Thursday: "I mean no more than anybody that was confirmed under President Barack Obama or George Bush or anybody else recusing themselves."

Supreme Court documents published in the United States Reports, the court's official records, show only that a recused justice "took no part in the consideration or decision of the case."

Leahy, a senior member of the Senate Judiciary Committee, described Republicans' push to confirm a nominee before Election Day as "ridiculous."

"The only way that the American people can be sure that President Trump is not using this nomination in an autocratic and nakedly political bid to secure his re-election is for Judge Barrett to make clear that she will not participate in any cases concerning the upcoming election," CREW's Bookbinder wrote Saturday.

Trump recently responded to allegations of misused Pennsylvania ballots with accusations of widespread "voter fraud," claiming Democrats are already "stealing the election"—a charge he also made during the 2016 presidential election.

Newsweek reached out to the White House for additional remarks Saturday afternoon.

Amy Coney Barrett
US President Donald Trump announces his US Supreme Court nominee, Judge Amy Coney Barrett (R), in the Rose Garden of the White House in Washington, DC on September 26, 2020. - Barrett, if confirmed by the US Senate, will replace Justice Ruth Bader Ginsburg, who died on September 18. OLIVIER DOULIERY/AFP via Getty Images/Getty