Baseless hypocrisy: Left demands Amy Barrett recuse herself in Pennsylvania voting case
To the surprise of absolutely no one, the left is now clamoring for newly confirmed Justice Amy Coney Barrett to recuse herself from the Pennsylvania election law case. On Tuesday, the Board of Elections for Luzerne County, Pennsylvania filed a motion demanding Barrett's recusal, alleging that her '"impartiality might reasonably be questioned' ... given the circumstances of her nomination and confirmation." What circumstances? That the "nomination and confirmation of a Supreme Court justice [came] this close to a presidential election."
Also predictable are threats from the left that if Barrett doesn't recuse herself, she will be impeached.
To paraphrase Homer Simpson's sage observation about donuts, "Impeachments. Is there anything they can't do?"
We non-lawyers can leave it to the constitutional scholars, or better still, Barrett herself, to figure out if she has a legal obligation to recuse. But it doesn't take a law degree to spot the liberal bunkum that Barrett can't possibly be impartial.
The "Factual Background" Pennsylvania's brief presents to the Court consists of hyperlinks to opinion pieces calling for Barrett's recusal and poll results suggesting that most Americans think Barrett should sit it out. But if you tell the Supreme Court you're giving it facts, shouldn't you give facts — not a hodgepodge of partisan jaundice? One prominent "fact" meant to prove Barrett's partiality is a passage from the Washington Post's James Hohmann, who concocted, as a pre-emptive lead-in to Trump's actual words, this misleading paraphrase: "Trump predicted that the Supreme Court will be called upon to determine the winner of the presidential election and that whomever he nominates on Saturday to replace the late justice Ruth Bader Ginsburg might cast the decisive vote in his favor." (My italics.)
But Trump really said this:
I think this will end up in the Supreme Court. And I think it's very important that we have nine justices[.] ... It's better if you go before the election, because I think this scam that the Democrats are pulling — it's a scam — the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation.
It's a habit with Trump's enemies to put words in his mouth, like this repeated lie that "Trump explicitly said he nominated [Barrett] to sway the election." But if Trump really said that explicitly, why not simply quote him saying it explicitly instead of rewording it into existence?
Trump was clearly saying that with a presidential election at stake, the potential of a 4-4 tie on the Court isn't a good thing, which is only common sense. Or does the left believe that a split Court is the best thing for the country going into this election? If unresolvable legal battles prevent the election from being certified, the whole thing goes to Congress — and then what happens to the will of the "people" the Democrats pretend to care about?
It's not as if the left cares that D.C. district judge Emmet Sullivan won't recuse himself, despite publicly manifesting his animosity towards Lt. Gen. Michael Flynn, and abusing his office for months trying to put Flynn in prison on Mueller's phony charges. And what if RBG were still alive? Ginsburg was publicly outspoken about her intense dislike for both Trump and his presidency, but could anyone believe that the left would be demanding her recusal from 2020 election cases? In fact, during the 2016 campaign, she openly expressed "her dismay at the possibility that Trump could win the election," and then she sat on a critical election case anyway. Justice Barrett hasn't done anything remotely as partisan as Sullivan or Ginsburg. She hasn't made public statements critical of Biden or in support of Trump's re-election.
Still, Pennsylvania argues that Barrett's nomination, "unprecedented" because it came just weeks before the election, makes her hopelessly partial. Except there's no such thing as precedent when it comes to the timing of a nomination, nor any precedent that forbids a nomination within X number of days before an election. If we ignore the Democrats' hysterical charges that this nomination was a sham, was "not normal," and will cause irreparable damage to democracy, it's clear that the whole process followed the exact pattern set down by the Founders: there was a vacancy, the president nominated his candidate, and the Senate did its advice and consent and confirmed the nominee. Voilà! It doesn't get any more precedented than that.
All the whining of Democrats that Trump's authority to appoint a justice vanished because "people were already voting" was just so much political hooey. Someone should remind them that it wasn't even Trump who picked the timing. This all happened because Ruth Bader Ginsburg died when she did (and for which she's being held personally responsible by her disappointed admirers). No matter who picked the end date for RGB's Supreme Court career, it can't be blamed on Donald Trump.
T.R. Clancy looks at the world from Dearborn, Michigan. You can email him at firstname.lastname@example.org.