Coney Barrett’s Moment of TruthRoundup
tags: Supreme Court, SCOTUS, 2020 Election, Amy Coney Barrett
Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.
For me, however, what stands out most clearly is Barrett’s colloquy with Delaware Senator Chris Coons about what should be (and may be) the easiest question she will face when (not “if,” because let’s face it, gang, the fix is in) she takes her seat: whether to recuse from a possible challenge to the 2020 election results by Donald Trump. To an ordinary person, the question doesn’t seem hard. Trump has proclaimed that he wants her on the court for precisely that case.
Coons, one of the Senate’s most notorious nice guys, engaged her repeatedly and respectfully on the recusal issue, and at length, he elicited from her this answer: “I certainly hope that all members of the Court have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people.” That is about as far as she had gone, by the second day of hearings, to addressing that GOP elephant in the room. But remarkably enough, answering Coons, she went on:
That would be on the question of actual bias. And you asked about the appearance of bias. And you’re right, the statute does require a Justice or judge to recuse when there’s an appearance of bias. And what I will commit to every member of this committee, to every member of the Senate, and to the American people is that I will consider all factors that are relevant to that question … that requires recusal when there’s an appearance of bias. And there is caselaw under the statute, and as I referenced earlier in describing the recusal process at the Supreme Court, it is always done with consultation with the other Justices. So I promise you that if I were confirmed and if an election dispute arises—both of which are ‘ifs’–that I would very seriously undertake that process and I would consider every relevant factor. I can’t commit to you right now for the reasons we talked about before, but I do assure you of my integrity and I do assure you that I would take that question very seriously.
For a brief moment, the unshakeable exterior of Saint Amy was pierced. A viewer could see that she grasped that her lead selling point—her unassailable goodness—could actually be doubted by Americans, even some who are not Democrats and that her name might be besmirched at the outset of her tenure.
It was oddly moving to see this hitherto-unruffled nominee visibly wrestling with a legal and ethical problem. I say that not simply because it has not happened in the Barrett hearings before, but because it has rarely happened, in my years of watching these hearings, at all. The ideal nominee’s demeanor is a mixture of bonhomie and opacity—a luxury auto salesman’s air of being utterly candid while giving absolutely nothing away. Barrett is as much a master of the blank affect as were Sonia Sotomayor, Kagan herself, or Neil Gorsuch.
But on Tuesday, she was visibly troubled by Coons’s question and its tacit challenge to her integrity. And while that was, in a human sense, poignant, I suggest we not read into it even the likelihood that a Justice Barrett would withhold her vote from the Trump side of an election dispute if that vote were needed. That’s because history suggests that recusal looks oddly different from the viewpoint of a Justice comfortably ensconced in chambers than from that of a designee yearning for office. William Rehnquist, while still an Associate Justice, cast the deciding vote in a case called Laird v. Tatum. The case was a challenge to a secret Army Intelligence program of monitoring domestic anti-war groups. Rehnquist was head of the Justice Department’s Office of Legal Counsel when the program was approved, and his recusal was considered an obvious necessity by legal ethics experts. Rehnquist’s vote, and the ensuing controversy, impelled Congress to tighten the recusal statute and remained an issue in 1986 when he was nominated as Chief Justice.
As for Barrett’s revered mentor, Antonin Scalia, refused to recuse himself from a case against then-Vice President Dick Cheney, despite a formal motion to do so. He and Cheney were not only friends but had recently taken a hunting trip together. Scalia dealt with the “appearance of bias” issued by expressing contempt for anyone stupid enough to question his integrity. He later boasted that refusing recusal was one of his proudest moments on the bench.
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