Sunday, October 18, 2020
Opinion | Amy Coney Barrett may need to recuse herself from 2020 election cases - The Washington Post
Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.
But while Caperton would seem to apply to Barrett’s decision with proverbial vengeance, only the Supreme Court knows whether this precedent applies so as to require her recusal from the 2020 presidential election cases. And only Barrett will know whether, in Scalia’s words, even if Caperton may not require her recusal, it counsels that recusal.
The art of judging is to divine from extant law and, when necessary, to fashion a principled rule of law that is sufficiently broad to decide the case before the court but sufficiently narrow that the rule will not decide cases for which a different rule should apply. The art is practiced by many but accomplished by few. One would think that the Supreme Court surely must have perfected this art by now, but, truth be known, it often eludes even our highest court — as it did in Caperton.
Judge Michael Luttig.