In his essay, Luttig writes that a Justice Barrett might be required to recuse herself from future election-related Supreme Court cases due to a 2009 precedent, where SCOTUS ruled a West Virginia Supreme Court justice who very owed his position to a litigant’s $3 million donation could not be impartial to said litigant.
The main practical difference between the 2009 case and today: West Virginia impeaches its justices all the time, and that will never happen at the U.S. Supreme Court. In other words, no matter how unethically a SCOTUS justice may act, they’re keeping their job and there’s nothing we can do about it.
That’s why we believe Luttig’s piece to be merely a bid to give Barrett cover – and an attempt to convince those on the fence about her confirmation that if pressed, she’d step aside from an election case (she won’t). The full text of the letter is here:
Regarding J. Michael Luttig’s Oct. 19 op-ed:
Though Supreme Court justices theoretically follow the same statutes governing conflicts of interest and recusals as judges on lower federal courts, these laws are only as strong as their enforcement. At the high court, there’s no enforcement save impeachment and removal, which will almost certainly never happen no matter the circumstances.
That’s why it was so galling to read a former federal judge assert that Amy Coney Barrett might be required to recuse herself from a case that decides the 2020 presidential election based on an oblique 2009 precedent. The question is not, as Mr. Luttig wrote, “whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.” Instead, it’s: Will she be able to keep her job no matter what she does? The answer is undeniably yes.
Mr. Luttig’s piece read like a bid to convince moderates that Ms. Barrett might not cast a deciding vote in a high court election case next month. But neither her participation in such a case nor her vote is in doubt.