In Defending Judge Barrett’s Non-Committal on Recusal in a Trump v. Biden Case, Ed Whelan Lies in Saying No One Questioned Whether Justice Ginsburg Would Have to Recuse in an Election-Related Case Given Her Comments About Trump

From this ABC report:

If Judge Amy Coney Barrett is confirmed and seated by Nov. 3 or shortly after, she could participate in decisions about any election-related petitions. This week, Sen. Chris Coons, D-Del., said Barrett “made no commitment to recusal” when asked if she would step back from a case involving Trump.

There is no formal recusal requirement for Supreme Court justices. The practice is entirely at each justices’ discretion.

“Recusal is a decision that’s made heavily fact-dependent,” said Ed Whelan, president of the Ethics and Public Policy Center and a former clerk to the late Justice Antonin Scalia. “In 2016, Justice Ginsburg made lots of remarks very derogatory about President Trump. No one was suggesting at that time that if there was election litigation that she should recuse.” (my emphasis)

From an Ariane de Vogue piece in 2016:

If the Supreme Court finds itself in the position of deciding the presidential election — as it did in 2000 between Al Gore and George W. Bush — some legal experts say the liberal icon would likely have to recuse herself.

“A federal law requires all federal judges, including the justices, to recuse themselves if their ‘impartiality might reasonably be questioned’,” said Stephen Gillers, a legal ethicist at New York University School of Law.

“Under this test, Justice Ginsburg’s remarks would prevent her from sitting in the unlikely event of a ‘Clinton v. Trump’ case that determines the next president,” he said.

Ginsburg attacked Trump in no uncertain terms this week, calling him a “faker” in an interview with CNN legal analyst Joan Biskupic. To The New York Times, Ginsburg said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

Gillers was referring to 28 U.S. Code 455 that says “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

“If a Trump election-related question made it to the Supreme Court, I expect that the Trump team would move for Justice Ginsburg to recuse herself,” said Rick Hasen, an election law expert who runs the Election Law Blog.”

Justice Ginsburg herself would decide on that motion, as there is no other mechanism for recusal,” Hasen said.

Steven Lubet, of Northwestern Pritzker School of Law, agrees with Gillers that Ginsburg would need to recuse herself in the event of a disputed election.

See also my Reuters opinion piece from 2016, Commentary: Ruth Bader Ginsburg’s slam of Trump does the nation no favors.

And here’s what I wrote about a Judge Barrett recusal in any Trump v. Biden case:


Let’s first clear away issues to the upcoming election: Of course Barrett should recuse herself from deciding any cases involving the 2020 presidential election. Trump’s repeated inappropriate comments that he wants her confirmed for the Court in time to “decide” the 2020 election are already causing reasonable people to worry about Barrett’s impartiality in resolving such disputes. A pledge to recuse would take this issue away from those who oppose her confirmation.

Update: Whelan says his misrepresentation of the truth was inadvertent and “off the cuff,” not intentional. For Zillow-man to accuse me of a “cheap shot” is extra rich.

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