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Opinion >  Syndicated columns

Noah Feldman: Trump’s Supreme Court comments put Barrett in a bind

Nov. 6, 2020 Updated Fri., Nov. 6, 2020 at 4:25 p.m.

By Noah Feldman Bloomberg Opinion

If the Supreme Court takes on a case connected to the outcome of the presidential election, Justice Amy Coney Barrett will face the most important decision of her career: not how to vote, but whether to participate at all.

The situation is unprecedented. Never before has a president explicitly stated that he is choosing a justice so that she will be able to adjudicate that president’s own immediate reelection. And while there are arguments both for and against recusal, the argument for recusal is stronger.

The one Supreme Court case that is most directly relevant is 2009’s Caperton v. A.T. Massey Coal Co. It involved a West Virginia judge who was elected after receiving $3 million in campaign contributions from the chairman of a company appealing a $50 million penalty. The chairman knew whichever judge won the election would review his appeal. The Supreme Court held, in an opinion by Justice Anthony Kennedy, that the due process clause of the Constitution was violated when the judge chose not to recuse himself and participated in the appeal that reversed the $50 million verdict against the company. The vote was 5 to 4, with Kennedy joining the court’s (then) four liberals to form a majority.

In a fascinating op-ed in the Washington Post last month, retired conservative judge J. Michael Luttig – who didn’t care for the outcome in the Caperton decision – nonetheless argued that the decision likely obligates Barrett to recuse herself from participating in a 2020 election decision involving President Donald Trump. He emphasized the crucial sentence from Kennedy’s opinion: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the other parties’ consent – a man chooses the judge in his own cause.”

One thing that makes the Caperton case different from Barrett’s situation is, of course, that the West Virginia judge was elected – and that the interested party spent cold hard cash on the judge’s campaign. Barrett, in contrast, was appointed by a president exercising his constitutional authority. The fact of her appointment alone certainly should not count as a reason for the justice to recuse herself. If it were, no justice would never be able to sit on any case involving the president who appointed him or her.

Yet there is another major factor in play for Barrett that wasn’t present in Caperton – and that cuts the other way, in favor of recusal. Trump has publicly and repeatedly said that one of the reasons he chose Barrett was that so she could cast the decisive vote in an election case involving him.

As the president put it back in September, “I think this (election) will end up in the Supreme Court, and I think it’s very important that we have nine justices … having a 4-4 situation is not a good situation.” A 4-4 tie at the court is what has allowed Pennsylvania to count ballots postmarked by Nov. 3, rather than only those arriving by Nov. 3.

This is the very archetype of the concern expressed by Justice Kennedy when he said that fears of bias would arise when “a man chooses the judge in his own cause.” Trump chose Barrett with the explicit intent that she judge his cause in the election battle he expected to wage at the Supreme Court. Indeed, litigation in the lower courts had already begun when Barrett was nominated. The Pennsylvania case was already pending at the Supreme Court before Barrett was confirmed.

The important issue for recusal is not only – or even primarily – whether the justice can trust herself to be fair. It’s whether the public can reasonably and legitimately expect fairness. As the federal recusal statute makes clear, recusal is proper where a judge’s “impartiality might reasonably be questioned.”

The optics of Trump choosing a justice specifically to decide on his case, and that judge then ruling in his favor, would have a devastating effect on public perceptions of the fairness and legitimacy of the court.

Trump has repeatedly called for the Supreme Court to intervene in the election, most recently in a 2 a.m. tweet Friday morning. Just a few hours earlier on Thursday evening, a Trump legal adviser and campaign proxy told Fox, “We’re waiting for the United States Supreme Court – of which the President has nominated three justices – to step in and do something. And hopefully Amy Coney Barrett will come through.” This is precisely the kind of situation where a reasonable person might question Barrett’s impartiality.

Barrett’s situation is therefore not at all like that of Justices Brett Kavanaugh or Neil Gorsuch, who became justices long before the 2020 election issues were before the Supreme Court. Her situation is unique on the court – and in U.S. history.

The limited principle that would emerge from Barrett’s recusal would be simply this: that recusal is appropriate when the president of the United States is involved in active litigation before the Supreme Court regarding his reelection while the justice is in the process of being confirmed, and the president has expressly said that he needs that justice on the court to decide the outcome in that particular case. With any luck, this situation would never arise again.

Barrett is, I believe, a deeply conscientious judge. She has thought carefully about recusal, even writing an important academic article about the subject. Ultimately the decision will be up to her. But a close analysis of this situation leads me to conclude that Barrett must recuse herself in order to preserve the legitimacy of the judicial process and the Supreme Court.

Noah Feldman is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.

The important issue for recusal is not only – or even primarily – whether the justice can trust herself to be fair. It’s whether the public can reasonably and legitimately expect fairness.

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