Retired Judge Michael Luttig, in WaPo Oped, Suggests Judge Barrett, If Confirmed Would Likely Have to Recuse (under the Caperton Case) in Any Supreme Court Election Litigation

Judge Luttig:

The majority declined to grapple with Roberts’s prescient question whether there is a principled difference between a case where a person has financially influenced a judge and one where the biasing influence is nonfinancial. But the majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether the judge recognized it.

The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.

Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.

I have already explained why I believe a Justice Barrett would have to recuse in such circumstances.

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.

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