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Amy Coney Barrett Shouldn't Recuse Herself From Any Election Case, Here’s Why

Demetrius Freeman/The Washington Post via AP, Pool

Even before Judge Amy Coney Barrett was officially nominated, Democrats argued that anyone nominated by President Trump to fill the vacancy left by Ruth Bader Ginsburg should recuse themselves from any case involving Obamacare (the removal of which has been a high-priority agenda item of President Trump’s) and any potential case related to the 2020 election, which many believe will end up disputed in the courts, particularly over the issue of mail-in ballots.

It is up to each Justice whether to recuse him or herself from a particular case, and Democrats have created a narrative that Judge Barrett’s objectivity to rule on such cases is a conflict of interest by default simply because she was nominated by President Trump. Democrats made similar arguments regarding the confirmation of Attorney General William Barr, whom they argued should recuse himself from handling a number of cases for no reason other than they believed him to be President Trump’s wingman, like Eric Holder was for Barack Obama—which didn’t bother them during his scandal-plagued tenure as attorney general.

Democrats don’t want a Justice Barrett to partake in Obamacare cases simply because of how they think she will rule, not because of any legitimate conflict of interest or legitimate reason for disqualification. If they were concerned about conflicts of interest they’d also be calling for Justice Elena Kagan to recuse herself from any and all cases involving Obamacare. They aren’t. And they never have, even though she, more than any other justice, should have.

According to 28 U.S. Code § 455, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” One such example is “Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Justice Elena Kagan has been casting votes in Supreme Court cases on Obamacare for years when, by law, was disqualified from doing so and should have recused herself.

Prior to serving on the Supreme Court, Justice Kagan was solicitor general for the Obama administration and played a major role in defending the constitutionality of Obamacare. In order to cover up the details of her involvement in Obamacare cases prior to her being on the court, the Obama administration simply refused to release documents pertaining to her role in those cases, citing attorney work-product protection, which, as Hans Bader of the Competitive Enterprise Institute noted, was contradictory to Kagan’s claim that “she never acted as the administration’s lawyer” with regards to Obamacare cases. Was the Obama administration using a false premise to cover up Kagan’s conflict, or something else equally disqualifying, or was Kagan lying? The answer is most likely: both

As Ed Whelen noted at National Review four years ago, Kagan’s role in “advising how to defend against challenges to Obamacare” is a matter of public record. He cited three examples out of several others:

– In January 2010, Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.”

– In March 2010, Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.”

– Katyal and Kagan then consulted on whether he or she should attend a White House meeting “to help us prepare for litigation” (Perrelli’s phrase) on what Katyal referred to as “litigation of singular importance.”

Justice Kagan is the only justice with an actual legitimate reason for disqualification from Obamacare cases. Amy Coney Barrett does not.

As for cases that may arise directly tied to the 2020 election, the sole explanation by Democrats for her alleged conflict of interest is based on the president who nominated her. If all justices recused themselves from cases that were in any way connected to the president who nominated them,  then it would be impossible for any administration to argue any case before the court without a justice or justices recusing themselves. Remember, the last president who didn’t nominate someone to the Supreme Court was Jimmy Carter.

So, it’s time to end the demands that Judge Barrett, whom Democrats seem to be conceding will be confirmed to the Supreme Court, has to recuse herself from anything.

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Matt Margolis is the author of the new book Airborne: How The Liberal Media Weaponized The Coronavirus Against Donald Trumpand the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis