The circumstances of this nomination and the efforts to secure Judge Barrett’s confirmation in the 38 days remaining until Election Day, with millions of Americans already voting, are just the latest anti-democratic action by this administration. No senator of conscience should support filling any vacancy on the Supreme Court under these conditions. Rushing the confirmation of a justice, without the opportunity for a meaningful Senate review, which is a key component of our constitutional system of checks and balances, and as the American people are already in the process of deciding who they want to be the next president and to serve in the next Senate, threatens public confidence in the Supreme Court and our democracy.
CREW will nevertheless evaluate Judge Barrett on her commitment to ethics and democracy. That commitment must begin with an unequivocal pledge that she will recuse herself from any cases that come before the Supreme Court concerning the upcoming election.
That pledge is necessary because, at the same time that he is attempting to alter the composition of the Supreme Court, President Trump is now saying that he will not accept the results of the election other than through a ruling of that same Supreme Court. The only way that the American people can be sure that President Trump is not using this nomination in an autocratic and nakedly political bid to secure his reelection is for Judge Barrett to make clear that she will not participate in any cases concerning the upcoming election.
Nothing is more important to a democracy than the integrity of its elections. Nevertheless, President Trump—who swore a solemn oath to preserve, protect and defend our democracy—has made more than one hundred false or unfounded claims about voting by mail. State election officials across the country have expanded the option to vote by mail or by absentee ballot, as well as early voting, in an effort to ensure that citizens can safely exercise their right to vote during the coronavirus pandemic.
In recent days, President Trump has betrayed our democracy by twice refusing to commit to a peaceful transfer of power. He has stated that he expects that the election ‘will end up in the Supreme Court’ and has left no doubt that he expects Judge Barrett to break what would otherwise be what he calls a ‘4-4 situation’. And President Trump has said that his strategy is to use the courts to invalidate ballots: ‘We want to get rid of the ballots and you’ll have a very peaceful—there won’t be a transfer, frankly. There will be a continuation.’
If Judge Barrett does not commit to recusing from cases involving the upcoming election, then her nomination must be viewed as no more than the craven power grab President Trump has suggested. Without such a commitment, there is no way that Judge Barrett could be able to fulfill the oaths of a Supreme Court justice to ‘support and defend the Constitution of the United States’ and to ‘faithfully and impartially discharge and perform all the duties’ of her office.