Court comments put Barrett in bind

[struggle4progress]

By Noah Feldman
November 6, 2020, 9:36 AM EST

... 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 re-election ...

The one Supreme Court case .. most directly relevant is .. 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 .. 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.”

... 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 ...

https://www.bloomberg.com/opinion/articles/2020-11-06/election-lawsuits-trump-s-supreme-court-comments-put-barrett-in-a-bind

[rsdsharp]

1. Supreme Court justices are the sole judge (pun intended)

of whether they should recuse. In Bush v. Gore the law firm that employed Scalia’s son was part of Bush’s legal team. Ginny Thomas was part of Bush’s transition team. Neither recused. Neither will Barrett.

[struggle4progress]

3. 28 USC 455

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

https://www.law.cornell.edu/uscode/text/28/455

[rsdsharp]

5. Yes, but they are the sole judge of whether their

impartiality might be questioned. There really is no tribunal to which the decision might be appealed as as practical matter.

[struggle4progress]

7. The statute, and its legislative history, make clear that

reasonable appearance of partiality requires recusal. That such an appearance would result has been clear since before Barrett was confirmed:

... We may need the ninth justice to decide the election, Republicans have said. Trump has refused to commit to respecting the outcome of the election, and Republicans speak about accepting the court’s decision, not the vote count, as if they plan to withhold recognition of the newly elected president unless and until the Supreme Court approves. No wonder Trump is frantic to fill the court’s vacant ninth seat and Senate Republicans ignored the Merrick Garland rule (no Supreme Court confirmations in an election year) ...
https://www.washingtonpost.com/opinions/2020/10/14/barretts-refusal-recuse-election-is-disqualifying/

Existing standards are clear enough from current case law: no one can be allowed to choose the judge trying his/her own case. The high court is not immune from such standards; and justices serve only during good behavior

[Silent3]

8. They may not be immune from those standards, but the only enforcement mechanism...

...for those standards is impeachment. And that won't happen.

[struggle4progress]

10. If the Republicans grab the presidency three times in twenty years, twice due

to Supreme Court interventions, despite having lost the popular vote in all three cases, there will be extensive political consequences of various sorts

[Silent3]

11. Perhaps, but not censequences Republicans would give a damn about facing

They've clearly shown themselves to play for power at any cost. Many will willingly drive this country into civil war to cling to power.

And all of the potential chaos would play right into Putin's hands.

[struggle4progress]

14. You can decide for yourself what you are willing to do

in various situations and how long a commitment you're willing to make for change

[3Hotdogs]

22. Not unless Jesus tells her husband what to do and he tells her what to do.

And we know Jesus loves the Republican Party.

[rsdsharp]

16. I'm sure the Senate would vote to convict after she's impeached.

However, her vote would still stand.

Chief Justice William H. Rehnquist subsequently noted, "[T]here is no formal procedure for court review of the recusal] decision of a justice in an individual case. This is because it has long been settled that each justice must decide such a question for himself."'

56 Hastings L. J. 657, 660 (2005).

[H2O Man]

21. +1

I think there is less than a .05% chance that the USSC will touch the election complaints of Trump any how. But your point is extremely important -- it's not simply if the judge/justice thinks he/she might have a conflict, but if it appears that there is one.

Thank you for this!

[jaxexpat]

24. Oh, well that's easy to explain. You see, when judges grow up and become supreme court justices,

they go through a metamorphosis similar to caterpillars and butterflies. As they enter the chambers for the first time, their robes, through a mysterious natural process, turn into magical omnipotent honesty shields. When the robes "go through the change" the justice becomes a superhuman exemplar of jurisprudence. It only happens in America and only to USSC justices. The greatest mystery for us mere mortals is how, if they are all perfect in their judgement why do some dissent from their comrades? This, like the virgin birth and papal infallibility is not to be understood by us laymen. Prayer and praise are the only appropriate response for us in our low form of enlightenment.

[brush]

2. In the irony department, isn't it rumored that Kennedy was bought out...

and resigned in the Kavanaugh nomination/confirmation to SCOTUS?

[Alpeduez21]

4. She ain't in no bind

The very fact that she accepted the nomination and went through with the chicanery has shown her integrity as non-existent.

[Golfnbrew]

19. THIS ! nt

[NoMoreRepugs]

6. That Caperton v. A.T. Massey Coal Co was 5-4 says it all. Tells me conservatives on SCOTUS

have different moral compasses than the rest of us.

[C_U_L8R]

9. Can a SC Justice be disbarred?

Though it probably wouldn't change a thing, at least the stain would go on record

[yuiyoshida]

12. What if she loses her license to practice law???

She can't work without one right???

[jb5150]

13. Based on my research ...

There are no explicit requirements in the U.S. Constitution for a person to be nominated to become a Supreme Court justice. No age, education, job experience, or citizenship rules exist. In fact, according to the Constitution, a Supreme Court justice does not need to even have a law degree.

[C_U_L8R]

15. That's what I thought... but the shame of being disbarred may still be meaningful

[Salviati]

18. Or rather, it would be if republicans were capable of feeling shame.

[Ford_Prefect]

17. When Karma bites you it has a nasty sting.

[Mr. Ected]

20. The prescient President precedent

Is what I like to call it.

[catrose]

23. I think Barrett, Gorsuch, and Kavanaugh should recuse themselves

Donald gave them their jobs. They shouldn't decide where he keeps his.

[JudyM]

25. "...no man is allowed to be a judge in his own cause" except, perhaps, trump pardoning himself.

We shall see.

[UTUSN]

26. K&R