- The Washington Times - Sunday, September 27, 2020

Senate Judiciary Democrats are demanding Supreme Court nominee Judge Amy Coney Barrett pledge to recuse herself from any election challenge, saying she would side with President Trump.

Sen. Cory A. Booker, a member of the Judiciary Committee that will hold the confirmation hearings, said he will press her about recusal when they meet one-on-one before the hearings.

“I’m going to make it very clear. One of the things I want to ask her is will she recuse herself in terms of any election issues that come before us because if she does not recuse herself, I fear that the court will be further delegitimized,” Mr. Booker, New Jersey Democrat, said on NBC’s “Meet the Press.”

Senate Minority Whip Richard J. Durbin, another Judiciary Committee member, said a recusal pledge would “evidence the fact that she wants to be fair.”

“This president has been outspoken and outrageous. To think that he would not accept the verdict of the election and that he would make it clear that he’s filling this vacancy on the Supreme Court to make sure it tips his way if there’s [a contested election], that is an outrage. No president has ever said that in our nation’s history,” the Illinois Democrat told ABC News.

On CBS’s “Face the Nation,” Sen. Chris Coons of Delaware accused Mr. Trump of intentionally picking a nominee who will “support him in his reelection effort.”

None of the Democrats calling for her recusal, however, extended that demand to either Justice Neil M. Gorsuch or Justice Brett M. Kavanaugh, both of whom were nominated by President Trump.

Recusal demands for justices linked to the two presidential candidates would leave only four justices on the bench, with Justices Elena Kagan and Sonia Sotomayor appointed by President Obama while Democratic presidential nominee Joseph R. Biden was vice president.

With court battles already underway over mail-in voting and expectations that the results will be extremely close, the presidential race easily could end up in the Supreme Court.

The Supreme Court effectively decided the 2000 presidential election in favor of President George W. Bush in a 5-4 decision by reversing a Florida Supreme Court request for a manual recount.

The recusal push for Judge Barrett follows Mr. Trump’s comments that he wants his nominee confirmed, in part, to be ready to weigh in on any legal disputes.

“We need nine justices. You need that,” he told reporters last week. “With the unsolicited millions of ballots that they’re sending, it’s a scam; it’s a hoax. Everybody knows that. And the Democrats know it better than anybody else. So you’re going to need nine justices up there. I think it’s going to be very important. Because what they’re doing is a hoax, with the ballots.”

Mr. Trump repeatedly has questioned the integrity of the election because of the surge of mail-in voting.

Unlike lower courts, the Supreme Court is not bound to any specific ethics code on recusals because of its unique position — none of the justices can be replaced or the decision reviewed by another, higher court.

However, Supreme Court justices can choose to remove themselves from a case if they feel it’s necessary.

Most recently, in March of this year, Justice Sotomayor recused herself from one of the two cases the court was hearing on whether or not states can dictate how members of the Electoral College cast their votes because she was friends with one of the parties in the case from Colorado.

“The justice believes that her impartiality might reasonably be questioned due to her friendship with respondent Polly Baca,” Supreme Court Clerk Scott S. Harris explained in a letter. “The initial conflict check conducted in Justice Sotomayor’s chambers did not identify this potential conflict.”

Earlier this year, Mr. Trump called for both Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor to be recused from any cases involving anything “Trump or Trump-related” because of their critical comments.

Sen. Mike Lee, Utah Republican, said the decision will ultimately be up to Judge Barrett.

“Judge Barrett, once confirmed to the Supreme Court of the United States, will be a Supreme Court justice, no less a Supreme Court justice than Justice Kavanaugh or Justice Gorsuch or Justice Breyer or Justice Kagan or Sotomayor,” he said on ABC News. “She will be a justice on full par with them. Whether she recuses in this or any other case is up to her and is up to her in consultation with her colleagues, her staff and the rules at play.”

• Gabriella Muñoz can be reached at gmunoz@washingtontimes.com.

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