Back to the recusal issue, which has come up again in questioning of Judge Barrett by Senator Klobuchar (D., Minn.) and will probably be raised again by Senator Harris (D., Calif.). I argued yesterday that judges should never recuse themselves before a concrete case comes before them; only in an actual case or controversy can any potential or alleged conflict of interest be assessed in a non-speculative way.
If there is a logic to the suggestion that Judge Barrett should preemptively recuse herself from any cases regarding the 2020 election because President Trump has appointed her, I don’t see how that wouldn’t extend to Justices Gorsuch and Kavanaugh, too. Furthermore, if we’re going to go down this road, then why shouldn’t Justices Sotomayor and Kagan also recuse themselves? After all, they were appointed by the president for whom Joe Biden served as vice president, and Biden avidly supported them.
There is no reason for any of these justices to recuse themselves. All of them have ruled at one time or another against a position taken in the Court by the administration of the presidents who appointed them. In fact, just three months ago, Gorsuch and Kavanaugh ruled against President Trump on personal matters involving his financial information.
I would suggest, however, that the Supreme Court would do itself a big favor by taking up, before the election, one or more of the voting process disputes now percolating in the states. (I will have more analysis of the Pennsylvania case shortly.) If the justices take up the case now, they will be ruling on process questions, using familiar legal rules and doctrines. If they wait until after November 3, they could well be putting themselves in the position of being perceived as deciding the election. That is not a position in which they or anyone else should want them to be.