Pure grandstanding, and Cory Booker knows it. But will it be effective grandstanding? It’s never actually worked before, even though Democrats keep trying it out on Republican nominees to the Supreme Court:
"One of the things I want to ask her is will she recuse herself … in terms of any election issues that come before us." pic.twitter.com/GSEDAloZU4
— Meet the Press (@MeetThePress) September 27, 2020
Sen. Cory Booker (D-N.J.) said Sunday that he would meet with Judge Amy Coney Barrett, President Trump’s Supreme Court nominee, and would ask her whether she was willing to recuse herself from cases relating to the 2020 election.
“I think you know my spirit, which is to sit down and meet with people and talk to them. And I’m going to make it very clear. One of the things I want to ask her is will she recuse herself in terms of any election issues that come before us because if she does not recuse herself, I fear that the court will be further delegitimized,” Booker, a member of the Senate Judiciary Committee, said on NBC’s “Meet the Press.”
The election may not be the only issue on which Booker will demand that Barrett recuse as a condition of confirmation. When it comes to health care, Booker wants a no go there too, it seems:
Booker also echoed his Democratic colleagues in voicing concerns that Barrett, if confirmed, would vote to overturn the Affordable Care Act.
“What … President Trump’s nominee has put up is that she will tear down the Affordable Care Act,” Booker said.
If this sounds familiar, it’s because we all heard it two years ago. That mainly came from the media, but the demand on Brett Kavanaugh was broader, too — a recusal from all controversial cases, which would include almost everything the Supreme Court considers. The idea pops up every time a Republican names a Supreme Court appointment, sometimes from people — like Booker — who should know better. Justices only recuse from cases in which they have played a material role, either in earlier rulings at a lower level or from legal work or personal finance complications.
At least the media stuck to the current nominee in those cases. Today, the Washington Post’s Colbert King declares that the upcoming election requires a broad recusal commitment from the most senior member of the court:
The code states: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That is the case, the code states, when “the judge has a personal bias or prejudice concerning a party” in the proceedings.
This is where a demand for Thomas’s recusal comes in.
By any measure, Thomas’s confirmation hearing was one of the most acrimonious and polarizing congressional events of the 20th century. Thomas wrote in his memoir “My Grandfather’s Son” that he looks back at the process in “horror and disgust.” Thomas described the hearing in which he responded to Anita Hill’s sexual harassment accusations as “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.” …
Thomas, in a recent documentary, condemned the hearings, charging that they they were designed to “get rid of me” because they viewed him the “wrong” African American for the high court.
Given these statements, does anyone really believe that Thomas can impartially hear a case impacting Biden and come to an opinion based on the law and facts?
Actually, yes, all the more so with Thomas. He has spent almost thirty years on the Supreme Court now, arguing for textualism and originalism as a means to get the judiciary out of biases and subjective policy preferences. Thomas has demonstrated a clear integrity in his approach to cases over that period of time, with no indication that he has ever used the bench to settle personal scores. If Thomas sincerely believes that he can’t set aside his personal feelings about Biden to judge an election case fairly, then Thomas can choose to recuse, but there is literally no indication that would be the case — and moreover, King doesn’t offer any evidence of necessity either. He just points to Thomas’ distaste for Biden and declares it necessary.
Did King demand that the late Ruth Bader Ginsburg recuse herself from Trump-related cases? Did Booker, for that matter? Ginsburg, after all, famously shot her mouth off in July 2016 about her distaste for Trump, suggesting that a “move to New Zealand” might be necessary if he won. That’s much more related to an election than anything Thomas said or wrote in the 29 years since his confirmation hearing. Where were Booker and King in 2016? In any event, Ginsburg never recused herself from any Trump-related cases, including his tax-return cases or any other policy challenges, despite her publicly proclaimed animus. Nor did the canons of the court require her to do so, and neither do they require recusals from either Thomas or Barrett now.
This just reminds us that recusal demands are nothing more than cheap demagoguery. And it reminds us that we should be prepared for lots of cheap demagoguery over the next few weeks.