Sen. Leahy asks Judge Barrett if she'll recuse herself from 2020 election results
Vermont Sen. Leahy questions Supreme Court nominee on recusal possibilities if disputes develop in the presidential election.
The Wall Street Journal has a solid editorial Tuesday on why Judge Amy Coney Barrett should not cave to Senate Democrats’ specious demands that, if confirmed, she commit to recusing herself from any cases related to the 2020 election process.
If the last few years have taught us anything, it is that top public officials should not disqualify themselves from exercising their high responsibilities based on hypothetical conflicts of interest. They should always wait until a case or controversy arises, so that any purported conflict can be assessed concretely.
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I continue to believe it was a mistake for then-Attorney General Jeff Sessions to recuse himself in a sweeping manner, in advance of any actual prosecutions, from anything having to do with the 2020 election and Russia. He should have recognized (as he did) that there were potential conflicts that could have to be addressed. He could then have recused himself, case-by-case, from the actual criminal prosecutions against his fellow Trump campaign officials – e.g., Michael Flynn, Paul Manafort and Rick Gates. But there was no need for him to recuse from a counterintelligence investigation (an information gathering exercise, not a prosecution) of Russia’s interference in the election; and there never was a Donald Trump prosecution warranting recusal.
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By recusing prematurely and too broadly, Sessions opened himself up to Democrat claims that he could not function as attorney general, should not participate in the selection of a new FBI director, etc. It hurt him badly, and contributed to making the recusal a recurring dispute with the president (though that was mostly the president’s doing).
Moreover, Supreme Court justices have a history of waiving off even concrete conflicts. The Journal covers a good deal of this today. Our Ed Whelan made a very strong case that Justice Kagan should have recused herself, but did not, from the Obamacare case. She had been the Obama administration’s solicitor general and advised the administration on how to defend against challenges to the Affordable Care Act.
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