Senate Democrats say they will press President Donald Trump’s Supreme Court nominee to commit to recuse herself if the justices hear a case that could impact the outcome of the fall elections, a request that could become a major flashpoint amid Trump’s persistent attacks on the legitimacy of the elections.
Trump in recent weeks has amped up his rhetoric about the elections, provoking alarm that he’s trying to undercut a foundation of democracy and hang onto power through a court fight. He’s regularly alleged the election will be “rigged,” asserted there will be mass voting fraud by mail – something his own FBI director disputes – while refusing to commit to a peaceful transfer of power. He’s said he believes a case over the election results will wind up before the Supreme Court.
The Nomination Process
So as Democrats prepare for high-stakes confirmation hearings over Trump’s nominee, who would likely swing the ideological balance sharply to the right, they plan to press the potential next justice to commit to not voting in any case that could impact the outcome of the presidential race.
Sen. Patrick Leahy of Vermont, a senior Democratic member of the Senate Judiciary Committee, called the quick process to confirm a nominee before Election Day “ridiculous” and said the nominee, if confirmed, should recuse herself from a case affecting the election – even as the White House insists such a recusal is not necessary.
“Whoever sits on the seat is going to be terribly conflicted because no matter what they do people are going to be watching,” Leahy told CNN on Friday.
The forthcoming clash comes as Democrats are beginning to prepare their strategy for confirmation hearings for Trump’s nominee, who will be announced on Saturday. All indications are that Trump will pick federal appeals court judge Amy Coney Barrett, who was approved by the Senate largely along party lines to her current spot after contentious exchanges with Democrats during her confirmation hearing three years ago.
Typically, it takes two to three months to go through Supreme Court confirmation proceedings in the Senate. But this time, Senate Republicans are gearing up for the nominee to be confirmed by the end of October, amounting to one of the quickest proceedings in modern times.
Hoping for a swift confirmation, the White House is setting up courtesy meetings with senators even before the nominee has been announced.
But Democrats are furious at the rush to confirm the nominee after the GOP refused to take up then-President Barack Obama’s Supreme Court pick in 2016 by arguing in March of that year it was too close to an election. And several Democrats told CNN they won’t bother meeting with Trump’s nominee now over their concerns with the expedited process.
“I don’t think it’s a good use of her time or my time,” Sen. Bob Casey, a Democrat from Pennsylvania, said when asked if he would meet with the nominee.
Sen. Mazie Hirono, a Hawaii Democrat and member of the Judiciary Committee, added: “I’ve said that all of President Trump’s judicial nominees, whatever they have to say to me would be under oath.”
With Trump needing 51 votes in a chamber occupied by 53 Republican senators, the nominee almost certainly will be confirmed by the GOP-led Senate, barring any missteps at the hearing or controversies that may emerge. That means Democrats have one major chance to paint the nominee unfavorably and potentially scuttle her chances during the hearings, which are tentatively scheduled to begin the week of October 12. The Democrats’ focus will in large part be on health care, including the nominee’s views on abortion rights, as well as the Affordable Care Act given that a GOP-led challenge to the law will be heard just a week after Election Day.
But Democrats plan to spotlight the arguments the President himself has been making in recent weeks over the fairness of the November 3 elections and the likely court fights that will ensue. Democrats, both on and off the Judiciary Committee, said that the nominee must make it clear she would not get involved in a case dealing with a President who had just nominated her to the lifetime position.
And since it is up to each justice to make his or her own decision on recusal, Democrats say getting a commitment during the confirmation hearing will be crucial.
“No one nominated in this process will be viewed as impartial,” Sen. Tim Kaine, a Virginia Democrat who was his party’s vice presidential nominee in 2016, said Friday. “That person sadly cannot be viewed as impartial on matters dealing with the presidential election – especially after the President said he’s got to get a ninth justice on the court to resolve these likely election disputes.”
Kaine added: “I think in order to avoid an appearance of bias, you have to recuse yourself.”
White House pushback
But the White House and Senate Republicans say that’s unnecessary, arguing that all nominees have ties to the president who nominated them – including the one Trump will announce on Saturday.
Speaking to Wolf Blitzer on CNN’s “The Situation Room” on Thursday, White House chief of staff Mark Meadows was asked if the nominee would have to recuse herself “given the process that’s unfolding right now.”
“No,” Meadows said. “I mean no more than anybody that was confirmed under President Barack Obama or George Bush or anybody else recusing themselves.”
Meadows insisted that so far during the vetting process, questions about the elections “are not part of the process.”
On Capitol Hill, Senate Republicans argue a full slate of justices is needed before November 3 to help resolve any election disputes and avoid a 4-4 tie where the lower court ruling would stand.
“If there’s a court challenge to the election, it will be decided in court – and the loser of the challenge will accept the results,” Senate Judiciary Chairman Lindsey Graham, a Republican from South Carolina, told CNN. “I promise the American people, if there’s litigation over the election, which there probably will be, because it’s the highest court of the land, whatever they decide, I will accept.”
But asked about concerns that Trump is seeking to fill the seat to help tilt a court challenge to the election toward him, Graham simply said: “We need a full court.”
‘Conflict of interest’
Democrats say that has given them plenty reason to worry.
“I think at this point, there’s a direct conflict of interest,” said Sen. Chris Van Hollen, a Maryland Democrat who also signaled he wouldn’t meet with Trump’s nominee before a confirmation vote. “It’s a total abuse of power for the President to be handpicking a justice who could play a role in that decision on his behalf.”
Maine Sen. Angus King, an independent who caucuses with Democrats, said a judge “should not only avoid impropriety but the appearance of impropriety. I can’t image a higher appearance of impropriety than a judge appointed by a President as a judge in a case involving the President’s election.”
King added: “If they do things like make a decision within weeks of their appointment that is favorable to the person that appointed them, that undermines public confidence in the courts. And public confidence is all the courts have at the end.”