It seems Democrats are determined to rely on the same worn playbook of appealing to “norms” that do not exist. Their latest attempt to obstruct the confirmation of Judge Amy Coney Barrett includes a particularly ridiculous demand: that Barrett agrees to recuse herself from any future case that may arise in relation to the 2020 presidential election.
Democrats are citing a fictitious standard that has no basis in reality in much the same way they bemoaned President Trump’s nomination of a judge during an election year as constituting a violation of norms. But that is the pesky thing about norms — they must be practiced in order to materialize.
The notion that Barrett must recuse herself or “categorically sit on the sidelines until the President who nominated [her] has left office” is entirely antithetical to precedent. As noted recently by Senate Majority Leader Mitch McConnell, R-Ky., the norm for situations in which a justice is deciding a case politically sensitive to the president who nominated her is to preside over the case. Unequivocally so.
There is quite the laundry list of such instances. For instance, the famous 1974 United States v. Nixon decision, in which the court ordered tapes related to the Watergate scandal to be handed over to the federal district court, included three justices appointed by President Nixon. Justices Warren Burger, Harry Blackmun, and Lewis Powell not only refrained from recusal but signed the unanimous decision against the president.
In a similar vein, Justices Ruth Bader Ginsburg and Stephen Breyer decided against their nominating president in Clinton v. Jones, concluding that a sitting president does not have immunity from civil law litigation. In other words, President Clinton was not shielded from Paula Jones’ claims.
Comparably, Justice Elena Kagan participated in two cases involving the Affordable Care Act—National Federation of Independent Business v. Sebellius and King v. Burwell — despite serving as Obama’s solicitor general when the Obama administration was gearing up for litigation to defend the act. As noted wryly in the Washington Post—an ever-friendly outlet for the Obama presidency — “If she were still in the job [of Solicitor General], Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional.”
Perhaps even more compellingly, recusal has never been the expectation in specifically election cases, either. For instance, both Ginsburg and Breyer participated Foreman v. Dallas County, which concerned the method of appointing election judges in Dallas County during the 1996 presidential election.
Likewise, neither Kagan, appointed by President Obama in 2009, nor Justice Sonia Sotomayor, appointed by President Obama in 2010, recused herself from the nearly half a dozen election cases that appeared before the Supreme Court. Let’s review.
In Husted v. Obama for America, which concerned the Democratic National Committee and Obama for America and an injunction against early-voting limits in Ohio, neither justice recused. In Lair v. Bullock, which concerned an application from Republican-affiliated organizations to vacate a stay on an injunction against enforcing campaign contribution limits in Montana, neither justice recused. In Voting for America, Inc. v. Andrade, which involved an application to vacate a stay on an injunction that had stopped Texas from enforcing certain voter restrictions, neither justice recused.
Don’t worry, it continues. In Libertarian Party of Michigan v. Johnson, which involved rejecting an application for emergency relief that would have placed Gary Johnson on the ballot in Michigan, neither justice recused. In Arizona v. Abeytia, which resulted in the Supreme Court rejecting Arizona’s application to stay a negative decision against its proof-of-citizenship voter requirement, neither justice recused. In short, no recusals related to election cases. Not one.
A natural question following this litany of examples would be why is Barrett any different? Simply because Democrats are blinded by seething partisanship does not mean judges appointed by Republican presidents are. Indeed, quite the opposite.
Democrats’ assumption that Barrett would approach election litigation with anything other than impartiality, thus jeopardizing her own professional reputation, is an affront to the seriousness with which all judges approach their roles as public servants. It is obvious that many Democrats are grossly unaware of the blood, sweat, tears, and most importantly, integrity, that go into a phenomenal career akin to the one Barrett has built.
Indeed, there is no floor to the unintelligent hysterics that Democrats are willing to perform in order to stop what appears to be an all-but-inevitable confirmation.
