Democrats are urging U.S. Supreme Court nominee Amy Coney Barrett to recuse herself from any election-related cases because of President Donald Trump’s comments that he expects the justices to potentially decide the outcome, but there is no way to force her to do so.
Although U.S. law requires justices to step aside when there is a conflict of interest or genuine question of bias, it leaves the individual justice to decide whether such a conflict exists. Aside from direct financial and personal conflicts, they rarely do so.
Trump on Saturday nominated Barrett to the vacancy created by the death of liberal Justice Ruth Bader Ginsburg on Sept. 18. If confirmed by the Republican-controlled U.S. Senate, Barrett would give the court a 6-3 conservative majority.
On Wednesday Trump said he wanted the full complement of nine justices on the court as soon as possible in part because he believes the court will determine the outcome of the November 3 presidential election.
“I think this will end up in the Supreme Court, and I think it’s very important that we have nine justices,” he told reporters at a White House event.
The Supreme Court has determined the outcome of a U.S. presidential election only once, in 2000, leading President George W. Bush to the White House.
Trump indicated that the Supreme Court would rule in his favour with nine justices on board. He alleged they would respond to an unspecified “scam that the Democrats are pulling” in relation to increased use of mail-in ballots as a result of the coronavirus pandemic.
Trump has repeatedly and without evidence attacked mail-in balloting, a longstanding feature of U.S. elections.
Senate Democrats said they will probe Barrett on the subject during her confirmation hearing before the Senate Judiciary Committee in the hope she will pledge to step aside in election-related cases.
Democratic Senator Cory Booker, who serves on the committee, said yesterday he would ask Barrett about recusal when he meets her.
“If she does not recuse herself, I fear that the court will be further de-legitimised,” he said on NBC’s “Meet the Press.”
There are no indications Republican senators share those concerns, with Republican Senator Mike Lee, speaking on ABC’s “This Week,” saying that recusal decisions would be up to Barrett.
During previous Senate hearings, Supreme Court nominees have routinely declined to commit on how they would approach cases that could come before them.
Federal law requires a justice to step aside from cases “in which his impartiality might reasonably be questioned.” In a 2011 report, conservative Chief Justice John Roberts said he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.”
Legal experts told Reuters that under the way the law has been interpreted up until now, the new justice need not recuse herself from any election issue.
