Judge Amy Coney Barrett was permitted, when testifying in her confirmation hearing before the Senate Judiciary Committee, to indulge in many questionable invocations of Canon 5 of the Model Code Of Judicial Conduct.
Section 5 A (3) (d) of the Canon prohibits, with respect to cases, controversies or issues “likely” to come before the court, a nominee’s public expression of pledges, promises or commitments concerning such matters inconsistent with impartiality in their adjudication.
But what is rationally controversial or likely to be in legal dispute about: whether global warming and climate change is occurring; federal judges’ written opinions about evidence of voter suppression; Roe vs. Wade having been the well-settled law of the land for nearly half a century; or that Judge Barrett herself has criticized Justice Robert’s reliance on a penalty versus tax analysis as the underpinning of his support for the constitutionality of the Affordable Care Act?
Nothing at all.
Yet Judge Barrett repeatedly and unabashedly invoked Canon 5 to refuse to answer questions relating to these simple statements of fact and many others before the Senate Judiciary Committee last week.
Her answers and limited further inquiry may have given the Judiciary Committee some insight into Judge Barrett’s legal and judicial thinking. She was nominated within days of the next presidential election and shortly after the president stated that “the Supreme Court will be counting the ballots in this election.”
Will she recuse herself from deciding these election issues if they come to the court? She doesn’t know. She’ll consult, she said, with her colleagues to seek their advice about whether to recuse herself. Which colleagues will she consult with? Justices Kavanaugh and Gorsuch?
Judge Barrett’s misuse of Canon 5 as a shield to prevent the Judiciary Committee from learning more about where she stands was really unnecessary from a practical standpoint.
A judge’s expression of an opinion about the law, political and social issues, and even judicial animus toward a litigant, does not, ipso facto, require recusal. If judges with such opinions reasonably affirm that they are not so deeply seated as to overwhelm their objectivity in a particular case before the court, and that they can set those opinions aside and rule impartially and without bias based on the facts and applicable law, they may continue to adjudicate the case.
No, the Senate Judiciary Committee did not learn anything new about Judge Barrett. But one thing was made abundantly clear. It’s that she appears to covet her appointment to the Supreme Court so much that, even though she will surely be confirmed no matter the answers she may have given to all of the questions posed to her, she remained unwilling to demonstrate the courage of her right-wing moral, political and judicial convictions.
Judge Barrett also hid behind Canon 5 so as to not provide political ammunition to those who would argue for her recusal when the constitutionality of the Affordable Care Act and other legal issues regarding the president’s authoritarian use of his office may be brought to the court in the coming days.
Shouldn’t Judge Barrett at least have been required to answer the question of how Scalian originalism-textualism approaches to the Constitution she embraces have any practical usefulness in 21st Century judicial decision-making?
Judge Barrett chose to thwart the Senate Judiciary Committee in discharging its responsibility to advise and consent. Her lack of transparency in introducing herself to the American people as their new Supreme Court Justice was not just disappointing. It was a charade, an affront to democracy and a spectacle that will not soon be forgotten.
Charles S. Sabalos is a retired superior court judge, former federal prosecutor, deputy Pima County attorney, criminal defense lawyer and member of the Arizona Commission On Judicial Performance Review.
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