Bench Memos

Law & the Courts

Arguments for Justice Barrett’s Recusal Are Ridiculous

“Democrats Ask ACB To Recuse Herself From Any Cases Involving The Constitution” read a headline Monday in the satirical Babylon Bee. That is not much of a stretch from the position Democrats actually took regarding now-Justice Amy Coney Barrett during the nomination process. They called for her recusal in cases that may come to the Court regarding the upcoming election, and they called for her recusal in the upcoming case regarding Obamacare, California v. Texas. A Pennsylvania county’s board of elections has now made a formal recusal motion in its litigation against the state’s Republican Party regarding mail-in ballot deadlines. If those recusal calls were legitimate, why not just demand she take a pass on any case deemed important?

Glib arguments for recusal trivialize a judge’s affirmative duty to decide cases. Canon 3A(2) of the Code of Conduct asserts that “a judge should hear and decide matters assigned, unless disqualified.” Whatever the recusal threshold is for lower court judges, Justice Stephen Breyer has noted that the bar should be even higher on the Supreme Court. For a court of appeals judge, a “borderline” call may counsel sitting out a case since “there are a lot of other judges who can step in.” But on the Supreme Court, “If you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.”

To review the governing standard regarding disqualification, 28 U.S.C. § 455 requires recusal in any proceeding in which a federal judge’s “impartiality might reasonably be questioned.” Other parts of the statute add specific instances in which a judge should recuse, such as “personal bias or prejudice concerning a party” or participating in a particular case in prior private or government employment.

For an example of a serious question being raised by one of those specific circumstances, recall that Elena Kagan resisted calls for recusal and participated in the two major cases that considered the constitutionality of the Affordable Care Act, National Federation of Independent Business v. Sebelius (2012) and King v. Burwell (2015). This was despite having served as Barack Obama’s solicitor general while her office was crafting a defense of the administration’s signature initiative in anticipation of litigation. Kagan denied substantive involvement with Obamacare during her nomination hearings while admitting her attendance at “at least one meeting where the existence of the litigation was briefly mentioned.” Internal emails raised further questions as it became clear she wanted her office involved, even if she assigned a deputy to the issue.

Of course, Democrats now calling for Barrett’s recusal had no problem with Kagan participating in those cases. What is most relevant here is that there are no comparable facts about Barrett’s prior work that raise anything approaching a serious question of recusal. Scholarly writings are certainly not in the same category as prior casework. Robert Bork’s published work made him a leading authority on antitrust law, and as aggressively as his opponents attacked him (including on antitrust issues), they could not argue with a straight face that he should recuse himself in antitrust cases.

Similarly, Breyer was an authority on administrative law before he joined the Court, and that did not trigger calls for recusal in administrative-law cases. (During his nomination, the recusal issue did come up, but it stemmed from the question of possible financial conflicts of interest arising from his membership in a Lloyd’s of London insurance syndicate.) Those who tried to inflate a single sentence Barrett wrote in a book review — one that did not even address the ultimate issue in California v. Texas — into a call for recusal in that case should be embarrassed.

In the absence of any issue whatsoever concerning Barrett’s financial holdings or prior work, the argument for disqualification rests entirely on whether her “impartiality might reasonably be questioned.” In any upcoming election cases, whether from Pennsylvania or elsewhere, the pro-recusal side is unable to cite a single word she has said casting doubt upon her impartiality. The argument simply assumes she would align herself with her appointing president.

Of course, it is stating the obvious to say that every president would like to win elections and (like Obama with Obamacare) any litigation in which his administration takes a position in court. But to try to turn that into an imputation against a justice’s objectivity is to disregard the overwhelming weight of history.

Justices are routinely expected to be involved in cases of importance to their appointing presidents and have often voted against their positions. In Korematsu v. United States (1944), when the Court upheld Franklin D. Roosevelt’s exclusion order that led to the internment of Japanese Americans during World War II, Roosevelt appointees Frank Murphy and Robert Jackson dissented. In Youngstown Sheet & Tube Co. v. Sawyer (1952), two of the votes against Harry S. Truman’s seizure of steel mills during the Korean War came from justices he appointed, Harold Burton and Tom Clark.

The same is true of cases that even more directly decide the future of the appointing president. In United States v. Nixon (1974), Richard Nixon’s claim of executive privilege was rejected in a unanimous decision joined by Nixon appointees Warren Burger, Harry Blackmun, and Lewis Powell, despite its foreseeable impact in bringing that administration to a premature end.

In Clinton v. Jones (1997), another unanimous judgment, joined by Bill Clinton appointees Ruth Bader Ginsburg and Breyer, rejected the president’s claim of immunity from Paula Jones’ sexual harassment lawsuit. The following year, Ginsburg and Breyer dissented from the denial of certiorari in Office of the President v. Office of Independent Counsel. Senator Sheldon Whitehouse recently wrote an op-ed for the Washington Post entitled, “A Justice Barrett must recuse herself from deciding the future of the president who picked her.” No, not if we allow the most basic understanding of American history to guide us.

In sum, both of Clinton’s nominees participated in numerous cases in which President Clinton was a named party (at least 79 for Ginsburg and 74 for Breyer), and both of Obama’s nominees participated in numerous cases in which President Obama was a named party (at least 102 for Sonia Sotomayor and 91 for Kagan).

In fact, even if the context were narrowed to recent election litigation when the appointing president is running for reelection, there is no basis for recusal. In 2012, the year Obama was running for reelection, both of his appointees, Sotomayor and Kagan, considered stay applications in several cases appearing on the docket that dealt with a range of election issues:

  • Husted v. Obama for America (early in-person voting limits)
  • Lair v. Bullock (campaign contributions)
  • Voting for America v. Andrade (voter registration)
  • Libertarian Party v. Johnson (ballot access)
  • Arizona v. Abeytia (proof of citizenship)

And of course, Democrats in Congress did not protest the participation of Democratic-appointed justices in such cases. That makes them look even more foolish when they persist in making frivolous arguments about recusal when the justice is not to their liking.


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