Senate Democrats cannot do a whole lot to stop the confirmation of apparent Supreme Court nominee Amy Coney Barrett. But they can try to set some conditions on her conduct that might strike a few Senate Republicans as reasonable, or more likely, score some points with the public about the extreme partisanship behind this rushed-up court-packing process.
So it’s smart that Democrats are already talking about trying to keep Barrett from playing a role in any 2020 election litigation, as CNN reports:
Senate Democrats say they will press President Donald Trump’s Supreme Court nominee to commit to recuse herself if the justices hear a case that could impact the outcome of the fall elections, a request that could become a major flashpoint amid Trump’s persistent attacks on the legitimacy of the elections.
If Republicans respond that this is a wild hypothetical that Barrett shouldn’t have to address, Democrats already have a good answer: Judiciary Chairman Lindsey Graham has said he wants a replacement for Justice Ginsburg confirmed quickly for the precise reason that the Court may have to determine the winner of the presidential contest, as has Trump himself. And the idea of an election-eve confirmation — on which the president is going to be campaigning frenetically — producing a justice who will almost immediately rule on his political fate is just a bit rich:
Sen. Patrick Leahy of Vermont, a senior Democratic member of the Senate Judiciary Committee, called the quick process to confirm a nominee before Election Day “ridiculous” and said the nominee, if confirmed, should recuse herself from a case affecting the election — even as the White House insists such a recusal is not necessary …
Democrats plan to spotlight the arguments the President himself has been making in recent weeks over the fairness of the November 3 elections and the likely court fights that will ensue. Democrats, both on and off the Judiciary Committee, said that the nominee must make it clear she would not get involved in a case dealing with a President who had just nominated her to the lifetime position.
Republicans at both ends of Pennsylvania Avenue, of course, already insist this is an unprecedented demand:
[T]he White House and Senate Republicans say [Barrett’s recusal is] unnecessary, arguing that all nominees have ties to the president who nominated them — including the one Trump will announce on Saturday. Speaking to Wolf Blitzer on CNN’s The Situation Room on Thursday, White House chief of staff Mark Meadows was asked if the nominee would have to recuse herself “given the process that’s unfolding right now.”
“No,” Meadows said. “I mean no more than anybody that was confirmed under President Barack Obama or George Bush or anybody else recusing themselves.”
“Anybody else,” of course, would not be adjudging the political survival of the president who had sworn them in just weeks earlier. Shameful as Bush v. Gore undoubtedly was, none of the justices deciding the presidency in that case had been appointed by George W. Bush.
It’s possible Barrett or her handlers will decide the recusal demand should be accepted in order to avoid the impression of a president stacking the Supreme Court in anticipation of a judicial ratification of a purloined second term — or even to avoid the decision itself. If not, Trump’s corrupt and dangerous efforts to extend his presidency four more years, and his legacy for much longer, may be exposed ever more clearly.