Amy Coney Barrett will almost certainly be the next justice of the U.S. Supreme Court. Her first act should be to recuse herself from any case involving the 2020 general election.
Whether Barrett’s confirmation comes before Election Day or in its immediate aftermath, her participation in any case involving the presidential election would create a manifest appearance of injustice so great that it could potentially threaten institutional reverence for the Supreme Court itself.
As a lifelong conservative and member of the Federalist Society since law school, I believe that Barrett will make a fine jurist. She is smart, qualified and prepared to serve on our nation’s highest bench. Liberal objections to the potential impact she might have on their preferred policies are overblown, simplistic and irrelevant.
Barrett will interpret the law as written. She is not going to let her personal religious beliefs dictate outcomes or attempt to legislate from the bench. That is precisely why I have always preferred the conservative approach to judicial ideology; it begins with setting aside personal belief.
Monumental decisions about Trump
Nobody put it more succinctly than Barrett’s mentor, the late Justice Antonin Scalia, who observed, “The judge who always likes the results he reaches is a bad judge.”
That is why liberals seem so shocked when Republican-appointed justices pen opinions like Bostock v. Clayton County. The ruling, written by Justice Neil Gorsuch, said LGBTQ people were protected on the job under a federal civil rights law banning sex discrimination in the workplace.
Of course, such judicial discipline does appear on the left as well. For example, months before her recent passing, Justice Ruth Bader Ginsburg, an icon of empowerment for women, offered a discouraging analysis of the Equal Rights Amendment designed to write gender equality into the Constitution. She said it had not been ratified by the required 38 states by the 1982 deadline, so any attempt to pass it would have to start over.
Nonetheless, ruling on cases involving the election presents an entirely different scenario. Barrett, who has so far not committed to recuse, would be making monumental decisions regarding the man who had just nominated her, President Donald Trump. Given that early voting started two weeks before Ginsburg's death created a vacancy, it is impossible to shed the appearance of undue influence.
Even if Barrett could rule impartially, the appearance of her taking part could condemn the Supreme Court to a terrible erosion in faith and confidence among the American public. Democrats would surely see a cynical system rigged by a man they loathe. Republicans would feel vindicated that the “right” judges will support their policy positions regardless of legal support. Unaffiliated and independent voters would see another reason to drift further from the broken system they’ve already abandoned.
That is too much to risk. Trump's corrupting influence
We’ve seen the corrupting influence Trump can exert on another coequal branch of government. The willful capitulation of Congress to Trump's whims, particularly the U.S. Senate, has led to the greatest abdication of power since the New Deal. Trump has taken advantage of that limp will to increase his own executive power with impunity. For the first time in history, a sitting president has put the peaceful transition of power into question. Barrett ruling on election-related cases would send the judiciary down a similar path. And it isn’t necessary. In 2016, we set precedent for proceeding through a contentious election with only eight justices seated and prepared to rule on election-related cases.
Barrett will likely serve on the Supreme Court for decades. If she wants to protect and preserve that venerable institution, she must immediately and unequivocally announce her intention to recuse herself from cases related to the 2020 presidential election.
Mario Nicolais, a veteran election law attorney and campaign operative, is the legal adviser to The Lincoln Project. He was senior research analyst for Rudy Giuliani in 2008 and general counsel for Gary Johnson in 2012. Follow him on Twitter: @MarioNicolaiEsq