Sen. Patrick Leahy, D-Vt., focused Tuesday on whether Supreme Court nominee Amy Coney Barrett would recuse herself if the high court had to decide who won the 2020 presidential election.
In the second day of the Supreme Court confirmation hearing to succeed the late Justice Ruth Bader Ginsburg, Leahy questioned Barrett about the Affordable Care Act, same-sex marriage and abortion rights.
But the Vermont’s senior senator’s most robust questioning was about potentially determining the outcome of the Nov. 3 presidential election.
Leahy asked Barrett, President Donald Trump’s third Supreme Court pick, if she would commit to recusing herself from any election decisions the court might have to issue in the aftermath of the November election.
Barrett pointed to the elaborate process of recusal, and refused to answer specifically.
Leahy raised the point because Trump said in late September he believes the election result “will end up in the Supreme Court” and it’s “very important that we have nine justices.” Now, with Ginsburg’s death, there are only eight.
“I think having a four-four situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be eight-nothing or nine-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth justice,” Trump said last month.
On Tuesday, Barrett said she has not discussed with the president or his staff how she might rule in any case.
“I also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result,” Barrett said.
Leahy continued to press Barrett, asking her pointedly about whether she would remove herself from any election result decision-making.
Barrett responded that Supreme Court justices must go through a process when deciding whether to recuse themselves, which includes looking at statute and legal precedent.
“The crucial last step is that, while it is always the decision of an individual justice, it always happens after the consultation with the full court,” Barrett said.
“So, I can’t offer an opinion on recusal without short-circuiting that entire process,” she said.
In response, Leahy said what concerns him are the optics of the situation and Barrett’s nomination process and the politicization of the Supreme Court.
“I’m thinking of the credibility of our federal courts and I would hope that you would at least consider that,” Leahy said. “The president is saying he needs a ninth justice because he’s counting on the court to look at the ballots in case he loses.
“Whether you like it or not, and I suspect you probably do not, the president has placed both you and the Supreme Court in the worst of positions,” Leahy said.
On Monday, the first of four days of confirmation hearings, Leahy said he was displeased that Republican leaders in the Senate moved forward with Barrett’s nomination process before the November election.
Democrats are still smarting from 2016, when President Obama nominated Merrick Garland on March 16 to succeed Justice Antonin Scalia — Barrett’s mentor — on the Supreme Court. However, the Republican-dominated Senate refused to consider the nomination. Scalia died 269 days before the election, Ginsburg 46 days.
“Justice Ginsburg, I am certain, would have dissented,” Leahy said Monday about the fast-track nominating process. “I will too, on behalf of Vermonters, on behalf of the integrity of the Senate and on behalf of the majority of Americans who oppose this process.”
While Senate Democrats are protesting Barrett’s confirmation, Sen. Lindsey Graham, R-S.C., who chairs the judiciary committee, has said he expects to finish the confirmation vetting by Thursday.
On Tuesday, Leahy alleged that Graham and the president are hurrying to confirm Barrett so that the Supreme Court will have the numbers to repeal the Affordable Care Act, known as Obamacare.
“Sen. Graham knows the president as well as anyone here — he goes golfing with him and he spends a lot of time with him,” Leahy said. “I think Chairman Graham knows that the president wouldn’t repeatedly promise to the American people that his judges will overturn the ACA if he didn’t mean it.”
