Wednesday, September 30, 2020

All the Questions Should be About Recusal

Joseph Fishkin

There is obviously something to be said for the proposition that Democratic Senators should not dignify this Supreme Court nomination process with their participation. This would help point out to the American people that this process is irregular: that this is not normal Supreme Court politics, but a brazen (and wildly hypocritical) power grab by a party afraid that the election currently underway might result in their defeat. And there would seem to be little to lose, given that (A) the nominee will studiously avoid saying anything about substantive legal matters, and (B) the entire Republican caucus has already effectively lined up behind a vote to confirm (save two Senators who seem to have claimed two of McConnell’s three available free passes to vote no). Consistent with the no-participation strategy, some Democratic Senators are announcing they are refusing to meet with nominee Amy Coney Barrett. (This move mirrors Republicans’ then-unprecedented blockade of the advice and consent process for Merrick Garland for a year in 2016–17.) But there is a problem with refusing to participate when you are in the minority: The hearings will go on anyway, and the media will rightly consider them newsworthy, which means they will be a one-sided infomercial. Thus, Democratic Senators actually do need to be there and ask questions. Those questions have to be directed at Judge Coney Barrett, not their Republican colleagues, even though it is those colleagues’ conduct that is really the main issue.

So how to proceed? I’m just one outside observer, but it seems to me that the answer is pretty simple. All the questions should be about recusal. The central line of questioning is something like this: The President argues that he does not trust the results of the election currently underway, and will not leave office unless “the Supreme Court” decides he has lost. He has said repeatedly that he wants his handpicked choice for the Supreme Court—you—confirmed before November 3rd in order to decide disputes about the election currently underway. We are not privy to anything he has said to you, or asked of you, or anything you said back to him, about these matters. Thus, we have no way to tell precisely how far the President has gone. But in the eyes of regular Americans and observers all around the world, based on the President’s public statements alone, he has made clear that he is violating deep norms of constitutional democracy by trying to stack the Court with partisans who will support his attempts to undermine the election and, at least if the result is close, decide the election in his favor. I hope that is not who you are. You have exactly one opportunity to prove it: you can make an ironclad pledge today that you will absolutely recuse yourself from any cases arising out of the election that is currently underway. If you can make such a pledge, you will show Americans that you are not a partisan hack there to help President Trump attempt to steal the election. You will do your part to show Americans that our constitutional democracy is still functioning. If you cannot make this pledge, you will show just the opposite, and the circumstances of your appointment during this election will follow you for your entire life as a Justice. No fine words, just a pledge to recuse, or not.

Asking about recusal is not asking about how a judge would decide a future case. It is not asking a “hypothetical.” It is asking for a promise now, which needs to be made now, because Americans are voting now in this election and need to hear this now, one way or the other. They need to hear not only because they are voting in the presidential race but also, more importantly, because her pledge to recuse or refusal to do so should shape how voters understand any Senator’s vote to confirm. There is essentially no way to avoid the question, because the question is, “are you going to avoid this question, or are you going to make the pledge to recuse?”

Republican Senators such as Lindsay Graham and Ted Cruz are already lining up to say Judge Coney Barrett should not pledge to recuse. I find this quite disturbing, since it suggests that it is not only President Trump who wants to urgently tilt the Court for purposes of tilting the election, but also some of the Republican Senators. However, Coney Barrett is the nominee now. She is no longer really beholden to any of these people. They will confirm her either way. If she wants to prove her independence, and her faithfulness to basic canons of judicial conduct and constitutional democracy, she should agree to recuse. Either way, that should be the entire focus of Democratic questioning. That will better serve the American people, who are the only audience for this televised “deliberation,” than asking about her views on any other legal matter.

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