Barrett Won’t Pledge to Recuse Herself From 2020 Election Cases Amid Pressure From Democrats

Judge Amy Coney Barrett listens during her nomination to the Supreme Court, in Washington on Sept. 26, 2020. Olivier Douliery/AFP via Getty Images

Supreme Court nominee Amy Coney Barrett won’t commit to recusing herself from cases related to the 2020 election amid pressure from Democrats calling her to do so.

Responding to a Senate Judiciary Committee questionnaire (pdf), Barrett said she would use a “recusal list” to identify and avoid potential conflicts. Her response did not identify any categories of cases but said it would include cases where her husband Jesse Barrett and her sister Amanda Coney Williams, both attorneys, participated in any stage of the proceedings. The list, she said, would also include cases involving Notre Dame University, where she is currently an adjunct professor, or affiliated entities.

She also added that she will step away from cases in which she had participated in as a judge on the 7th Circuit Court.

This comes as Senate Democrats are calling on Barrett to recuse herself from any election-related cases after President Donald Trump remarked that he believes the outcome of the election might end up in the Supreme Court, stressing that it would be important to have nine justices on the court.

The president had accused Democrats, without elaborating further, of “pulling” a “scam” that will be challenged in the Supreme Court.

“Just in case it would be more political than it should be, I think it’s very important to have nine-justices,” he said. Trump has repeatedly warned that the Democrats’ push for universal mail-in voting would be ripe for fraud.

Sen. Cory Booker (D-N.J.) told NBC over the weekend that he would meet with Barrett and ask her whether she would be willing to recuse herself.

“I think you know my spirit, which is to sit down and meet with people and talk to them. And I’m going to make it very clear. One of the things I want to ask her is will she recuse herself in terms of any election issues that come before us because if she does not recuse herself, I fear that the court will be further delegitimized,” Booker, a member of the Senate Judiciary Committee, said during the interview.

Similarly, Sen. Dick Durbin (D-Ill.) also indicated to ABC that he would like to see Barrett recuse herself in election-related cases, saying that it would show “that she wants to be fair in addressing this.”

Senate Republicans have not indicated whether they share the same concerns as their Democratic colleagues. Sen. Mike Lee (R-Utah) said in an interview with ABC that the decision of whether to recuse is up to Barrett and that he has “every confidence that she'll make the right decision.”

Meanwhile, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) had told reporters that he thinks it was a “ridiculous” suggestion that justice would not be able to hear election-related cases “because she was nominated in an election year.”

“There is no legal disqualification. She doesn’t have a legal conflict. She doesn’t decide the election. She’s just a vote like everybody else,” Graham said.

Judges routinely recuse themselves from cases. The due process clauses of the Constitution requires judges to recuse themselves when the judge has a financial interest in the case outcome, and when there is a strong possibility that the judge’s decision will be biased, according to Cornell Law School.