I will stipulate that the newest Supreme Court Justice does not have to recuse, and that even the judicial ethics rules applying to other Federal judges (no judicial ethics rules are controlling for Supreme Court justices) would not require recusal in Justice Barrett’s circumstances.
I will also concede that the arguments that she should not recuse are significant and important:
1. Were she to recuse, it would be interpreted by many as an acknowledgment that her Senate critics and others were correct to suspect that she was nominated to assist the President if necessary in any Supreme Court challenges to the election results.
2. Her recusal would suggest a precedent holding that a Justice being nominated by a President creates a rebuttable presumption that such a Justice has a conflict of interest that would interfere with the Justice’s ability to exercise independent and objective judgment in any case directly affecting that President’s interests.
3. Her recusal would leave the Court with a potential 4-4 split on a case that would have major impact on the nation.
4. Democratic officials’ demands that she recuse herself are driven purely by partisanship, and are hypocritical. Justice Kagan, appointed by President Obama, did not recuse herself in cases involving the Affordable Care Act, for example.
All this is true,
and yet.…
I believe it would represent exemplary ethics for Barrett to announce that in an abundance of caution, out of concern for the need to avoid even the appearance of bias and impropriety, in acknowledgement of the dangerous level of division and distrust among the public, and most of all, because in the unlikely event that the Court has to make a decision that determines the outcome of this election, it is critical that such a ruling be regarded as above reproach, she will recuse herself even though she has no doubts that she is capable of ruling on such a case without being influenced by anything but the arguments of the litigants and her own judicial analysis.
If such the eventual ruling is 5-3 or 6-2, then Barrett’s absence will not decide the issue. A 5-4 decision, with Barrett casting the deciding vote in a ruling that gave the Presidency, or the Electoral votes of a major state like Pennsylvania or Michigan, to Trump would be disastrous for the Court and for the Republic.
Best of all, if there is no such case, as seems likely at this point, Justice Barrett will have improved her reputation and enhanced her perceived fairness and trustworthiness.
Ethics Alarms 
“Best of all, if there is no such case, as seems likely at this point, Justice Barrett will have improved her reputation and enhanced her perceived fairness and trustworthiness.”
I needed a good chuckle today.
I can just imagine Sen. Hirono stating, “by golly, I misjudged her. I totally changed my mind on Justice Coney Barrett. She’s a real mensch and worthy of unlimited respect.” Or Feinstein – what would she say? Or that idiot Blumenthal? The whole lot of those Democratic senators could issue a joint “mea culpa” apologizing to her for treating her the way they did.
jvb
Good observation. The “conservative” justices (should be read as “justices who rule based on the Constitution”) will *always* be disdained by the Left, except for the 15 minutes after an interpretation of the Constitution leads to a leftwing policy standing. Then right back to hatred.
I figured the intent was not about changing the minds of ideologue legislators, but about building a reputation with regular, sane people. It also helps to take away talking points from the ideologue senators.
Huh? Who in a 5-4 vote casts the deciding vote? The last person to vote with the majority? The most ‘controversial’ justice in the majority? The ‘most likely’ ‘swing vote’ in the majority?
That’s silly. Just like in a baseball game that is tied 5-5 in the ninth, and the team at the bottom on the 9th scores a home run.
That last scorer didn’t score the winning run any more that the guy who hit the homer in the 1st inning, whose absence of a run would have left the winning team lacking.
Exactly. I don’t get it.
At the end of the day, the travesty is *not* the 5th justice in a 5-4 decision. The travesty is that the justices do not interpret the constitution so consistently honestly that decisions aren’t 7-2 or 8-1 or 9-0.
Also, screw the Democrats. They set up the system to be absolutely so divisive that all moves either add to division or add to Democrat power.
Screw them. They paved a road to the coming fight, they get to drive to the end.
That’s where I agree. They need to do the job the were put in the seat to do, without (as best they can) letting outside interference in. THATS THE WHOLE POINT. Recusing is bad. For all the other reasons listed above.
If Barrett is required (recommended) to recuse herself, then Gorsuch and Kavanaugh (especially Kavanaugh) must also be required to recuse. As Harry Reid always said “fair is fair” (no, that wasn’t It, was it
). Maybe we should all curl up in a fetal position. I’d like to have a discussion of the ethics of a knife fight.
No, they don’t. I explained why. If you’re going to comment, I’d ask that you either read the posts more carefully, ort think more clearly.
I was about to make this exact point, is she the deciding vote because the left thinks her vote is the easiest to remove?
For the sake of this comment, I think the assumption is that the bloc that supports Trump is Thomas-Alito-Gorsuch-Kavanaugh-Barrett, Of those five, Thomas, Alito and Barrett have some of the most conservative positions, why aren’t we considering Gorsuch or Kavanaugh the swing vote? They were both Trump nominees as well. Hell, if being nominated by the president effected by the case in front of you is recusable, why aren’t they calling for all three to be recused?
But even that is inappropriate, when is the last time Sotomayor, Kagan, or Ginsburg voted against a Democrat platform position? I can list decisions where what we’re calling “conservative” justices chose principle over party, but I’m really scratching my head for the last time a Democrat appointed judge bucked the party line, and I’m old enough to remember when the left was criticizing Trump for assuming such a thing as a “conservative” justice existed.
The Democrat’s mewling right now is projection, they are afraid the people they view as their opponents will behave as they would if they were in their opponents position. Acting as if they have a point is counterproductive, inappropriate, and unnecessary. If every time an infant screams, you shove a lollipop in it’s mouth, it’s going to expect the lollipop, scream more, scream louder when it doesn’t get the lollipop, and get diabetes. Let the babies cry.
It’s pretty obvious. She’s considered the swing vote because 1) she replaces the most ideologically rigid and predictable vote on the court who 2) already insulted and condemned Trump in a public statement. and 3) she was nominated with the campaign underway and the possibility of a SCOTUS intervention looming after the precedent of 2000.
I’m pretty sure Jack meant a 5-4 decision where Barrett is one of the 5, given that the decisions aren’t ordered chronologically, as you point out.
As succinctly as I can, I say I disagree. Remember Jeff Sessions? Or better yet, Harry, “he lost didn’t he” Reid.
It is one thing to do the ethical thing but to behave in a manner to avoid criticism from the axis of unethical conduct is foolish and dangerous for the republic.
The more I think about it unnecessary recusal to avoid criticism is a rationalization and not an ethical choice.
Agreed. Recusal surrenders to the accusation of bias and will destroy her judicial independence. Making nice with the Left will only lead to sharpening the knife they will use to cut off your head. That is why I can’t wrap my head around Kemp’s consent decree with Abrams in Georgia on mail in voting rules. It implies she was right and she was robbed of the governorship by voter suppression along racial lines. You don’t give into the Left on anything. You kill the argument in its tracks. You destroy their political power and move on.
jvb
This whole year has been giving into the mob mentality of the Left. They do it because they can.
https://getyarn.io/yarn-clip/78dc9c6c-294e-49b3-ac6c-76067f62322e
If the situation were reversed, would a liberal justice recuse themselves?
No.
Practical ethics and ideological ethics. In a perfect world, I would agree. In the current world, I do not agree. The totalitarians will do whatever it takes to destroy the opposition. The people who believe in liberty need to take that into consideration and act accordingly.
I don’t think it is unethical to do your job according to the rules. I think it would be unethical to let totalitarians win for the sake of appearances.
Of course Barrett should recuse herself, “out of concern for the need to avoid even the appearance of bias and impropriety”. With regard to the remaining eight, I would note that each of them was appointed by a president who favors one or the other result in this election. While none of those justices actually are biased in favor of Trump or Biden, just the appearance that they may be would be destructive of the Court. Therefore, each of them must recuse. This, of course, applies not only to the presidential election, but they must recuse themselves from any future case which involves the president. This is especially important for any case that is lobbed about as the most consequential of the decade, the century, our lifetime, or whatever. It is when things are most consequential that recusal is most important. For appearances. Perhaps, with time and enough recusals, each justice will have improved their reputation and improved their perceived fairness to the point where their decisions will be universally accepted.
That’s an easy one. Being appointed by a President who “favors” a candidate is not remotely a conflict by the wildest stretch of the imagination. Being nominated BY the direct beneficiary of that Justice’s ruling in anticipation of a crucial case is.
I didn’t expect this debate proposition to be popular, and I’m not disappointed. So far, I’m also not impressed with the opposition. Prior to an election that many anticipate ending up in the Court, the President nominates a likely ally. She is repeatedly questioned about her likely loyalty to POTUS. She appears with the President at an apparent victory party after her confirmation. The President, as the election is being challenged, constantly mentions getting the election into the Supreme Court, as if that will guarantee victory.
That’s the appearance of impropriety. Easily. And that is dangerous at this time. The recusal is necessary to protect the court’s image and legitimacy, which will be increasingly vital going forward.
The objective of Barrett’s recusal would not be avoiding “criticism.” It would be to avoid a collapse of public faith and trust in our institutions.
I think public faith and trust in our institutions already collapsed. That ship sailed somewhere between Russian collusion and the impeachment of the president. The election rigging set fire to the wreckage and now its just a pile of smoking ash.
At least you’re giving up without a fight…
Who’s faith are you trying to restore with this move? It will make one half the country smug, and destroy the other half’s faith in the Supreme Court. I don’t think the smug half will actually have any faith restored, they don’t want to have faith in the country. They want to remake it.
Barrett recusing would make lawyers happy, because they understand legal ethics. I guess that is something.
Honestly, I don’t see how 1) it would make one half of the country smug, and 2) if the other half thinks they have any right to a SCOTUS decision based on having a Justice on their “side,” then that half doesn’t know beans about the way the Constitution, the nation and law are supposed to work.
The overwhelming likelihood is that there will be no case at all, so the result of this prophylactic recusal will be to make future conservative decisions more credible, and nothing will be lost whatsoever.
I don’t think the conservative half of the country is assuming that the decision would go their way. I think they are assuming that the conservative justices will rule according to way the constitution is written, and the liberal justices will rule based on the way they want the constitution to be rewritten.
If the full court rules according to the constitution, and the result is not the result conservatives want, they are more likely to accept the unwanted result than if Barrett recuses and the result is not what they want. That will just be perceived as liberals legislating from the bench.
The other half of the country is always smug any time they perceive themselves as getting one up on the other side. Barrett recusing would be portrayed as a Biden win.
Barrett recusing based on the odds that no cases will reach the Supreme Court sounds a lot like making an empty gesture based on a gamble that that recusal will be irrelevant. How do empty gestures and gambling restore anyone’s faith in anything?
More like recognising the obvious.
The Federal Judiciary is thoroughly politicised. Barrett and Ginsberg – 2 opposite sides of the same coin.
I am suspending judgment until I see her rulings as a grossly inexperienced judge. I’m too biased to be objective, and will recuse myself, not just for appearance’ sake, but for genuine doubt.
If I was to place a bet, I’d bet on her acting with propriety, rather than as a Trumpian sockpuppet. I fear there is a possibility I might be wrong, but that may just be bias on my part.
Trump’s judicial picks have been excellent, not because I’m a conservative and I think they’ll be biased towards positions I’d prefer, but because their jurisprudence makes sense. Kavanaugh and Gorsuch have both, independently of the other either ruled against or joined dissents against Trump’s administration, because Trump isn’t great at following the constitution.
Despite my earlier position that Barrett should not recuse (because of course she shouldn’t) I think that it wouldn’t matter. If Trump’s position was wrong, I don’t think he could count on any of the conservative justices, nevermind all five of them, and if Trump’s position is right, I think that the only “safe” Democrat votes would be Kagan and Sotomayor, maybe Breyer. 3 people was never going to make a majority. That even assumes that the court picks up any of this mess. I don’t think we’ll get there.
I actually think that’s why Jack thinks that Barrett’s recusal would be ethical… It’s the kind of performative bridge building that the left ostensibly likes, while not actually giving anything up.
You are correct, sir.
The President, as the election is being challenged, constantly mentions getting the election into the Supreme Court, as if that will guarantee victory.
Well, Jack, if that’s all it takes, the Thomas must also step aside because of his wife’s meeting with Trump last January.
How dilute do we need to make something before it no longer counts as “an appearance of impropriety?” Mere nomination? Proximity to the election? Somebody involved in the controversy having met a Justice’s brother’s cousin’s former roommate?
Help me out here.
No, because for many reasons, mostly related to feminism and women’s rights, there is a convention and legal fiction that one’s spouse cannot create a conflict of interest in that spouse’s own profession or activities.
Doesn’t matter. It’s the appearance of impropriety, after all, not the reality. Right?
Nobody really believes her meeting with Trump was improper, or an actual reflection of her husband’s beliefs. But the appearance that it could be, reality notwithstanding, was your whole point.
“Prior to an election that many anticipate ending up in the Court, the President nominates a likely ally. She is repeatedly questioned about her likely loyalty to POTUS. She appears with the President at an apparent victory party after her confirmation. The President, as the election is being challenged, constantly mentions getting the election into the Supreme Court, as if that will guarantee victory.”
Yes, or:
Following the death of a SCOTUS justice, the president nominated another justice, as every president has in the history of America. That nomination was taken before the Senate, and as has been the case with almost every nomination where the President came from the same party as the Senate majority, the Senate passed the confirmation, and as they’ve done for every nominee that passed in American history, did it quickly. The average is something like 10 days, so not even record braking quickly, there were confirmations that happened the same day as nominations, and in recent memory John Paul Stevens was confirmed in 17 days. After her confirmation, Barrett attended a reception at the white house, similar to every other successful nominee in recent history. Trump, facing a genuinely unprecedented set of election parameters, said that in the case of election issues, the supreme court would have to make decisions… Which is both true and precedented.
I can’t say this enough: Trump is not the problem here. (He is *a* problem, just not in this case) The Senate was not the problem here (ditto). The Democrats are the problem here. They lost several key elections, and then pretended that they’d still get the outcomes they were hoping for, and then every time they didn’t, they rioted. It is childish. Acting as if that childishness is legitimate and rewarding it with appeasement measures is not ethical.
“That nomination was taken before the Senate, and as has been the case with almost every nomination where the President came from the same party as the Senate majority, the Senate passed the confirmation, and as they’ve done for every nominee that was confirmed in an election year, did it quickly.”
Again… didn’t say what I meant to. The Senate, regardless of party, has rejected more nominees than they’ve passed in an election year 16/26, and passed 10. Those 10 were confirmed *amazingly* quickly.
Exactly.
jvb
Speaking of childish behavior, this is a good time to reference another blog post…
Emotional Childishness Is A Societal Cancer
Well, you know that I agree that the AUC is THE problem, but Trump has made it a worse problem than it had to be, and this is a prime example. Your version lacks the crucial context of a nation, regardless of who is at fault, on the brink of an existential crisis on a level that has only loomed twice before: the Civil War and the Great Depression. That makes the situation facing Barrett materially different.
Jack wrote, “Your version lacks the crucial context of a nation, regardless of who is at fault, on the brink of an existential crisis on a level that has only loomed twice before: the Civil War and the Great Depression.”
Can’t the political left’s massive shift towards totalitarianism, anti-Constitution, anti-American, anti-law and order, blatantly open brown shirt intimidation tactics, etc, etc be considered a “crucial context of a nation”?
Well, when you put it that way . . .
jvb
Jack wrote, “Trump has made it a worse problem than it had to be”
I completely agree. He seems to do that with everything, he seems to “enjoy” the chaos.
Jack,
Giving up would mean acquiescing to the AUC.
The fact is that if Barrett recused we are left with a split court anyway. Does anyone think the progressive justices would ever rule for Trump.
Kagan, Sotomayor, can be counted on to vote against Trump now. Alito, Gorsuch and Thomas would probably side with Trump. Roberts and Kavanuagh may seek to avoid conflict by voting not to hear a case at all. We conclude this before the first brief is presented. That means that ideology Trumps the Constitution.
The fight for Garland or against Barrett is predicated on the belief that a judge’s ideology or politics influences their decisions. That tells me appearances of impropriety are only seen by the opposition.
If you trust the court to render just verdicts based on the constructs of the Constitution then you will give each justice the benefit of the doubt. Because we do not do this every justice is suspected of impropriety. They all ooze the appearance of bias so until I see more near unanimous decisions I shall remain jaded.
The justices are just not that doctrinaire. The most predictable are Thpmas. Alito, Sotomayor and Breyer. The rest can be counted on to follow the law, not the politics.
Ginsburg topped the list before she “assumed room temperature.”
A 5-4 decision, with Barrett casting the deciding vote in a ruling that gave the Presidency, or the Electoral votes of a major state like Pennsylvania or Michigan, to Trump would be disastrous for the Court and for the Republic.
In all this analysis is the tacit acknowledgment that the problem lies with the Left going berserk should Justice Barrett contribute to a 5-4 decision in favor of Trump. Also tacit is the assumption that should a 4-4 tie with a Barret recusal then leave an important matter in limbo, the Right will simply swallow that blow without protest. This is especially true if the matter of the Pennsylvania voting rules change makes it back to the Supreme Court, and the Supreme Court denies a hearing because the same Justices already ruled 4-4 earlier in the year.
I agree that should Justice Barret be a deciding vote in a 5-4 decision that favors Trump, the Left will explode in violence. But are we overlooking the reaction of a Right who feels that Barrett’s recusal is a betrayal of the very reason they voted Trump into office? Do we really think the Right will simply subside into grumblings, choosing to be patiently irate, as opposed to engaging in their own radical acts?
Whether the Right is correct or even justified in the belief, they believe that they’ve been playing by the rules, and the Left has been cheating. Everywhere I look, I’m hearing people on the conservative end of the spectrum stating that they’re done playing nice. We hear it here at Ethics Alarms, where we would expect that everyone strongly considers the ethics of the situation. Yet instead we’re hearing statements of “Ethics be damned! It is time to fight.”
Do I think the Right will erupt in violence in the same way the Left would? No. The Left will take to riots in the streets. The Right will hunker down, refuse to cooperate, and then counterattack when it seems that the Left is attacking. Perhaps it will be in response to the mask mandates. A group of people harass someone about not wearing a mask. Perhaps police are called. And then gunshots are fired. Perhaps in some town called Sarajevo.
The question for Barrett, as it should be for any Justice, is whether or not she can rule in accord with established law, without concern for whom it may benefit or how others will react. If rulings on law can be subordinated to threats of violence, then the rule of law is lost.
Don’t bet on the right just dropping out of sight. We could make every area outside the major cities very dangerous for the left. We could also cut off the food and energy supplies to the cities. Destroy the heartland and the grass will grow in the streets of the cities. Also, the biggest rabble-rouser can’t stir up trouble if he’s lying dead in the street with a bullet in his head. The left just spent four years ignoring the rules and engaging in every dirty trick in the book. Bullies can’t stand it when their own tactics are turned against them. Pedo Joe is about to find out what it felt like for the last four years.
Steve
I have thought the same thing. The cities are vulnerable to the hinterlands laying siege to them.
I get a chuckle when I hear others say if a civil war were to break out it will go the same way as the civil war. They seem to forget that the manufacturing capacity no longer is the cities. Pipelines can choke off fuel but more importantly their will be no boats landing thousands of impoverished Irish in NY to be conscripted canon fodder in their regiments
Nor Italians (there were whole regiments of them too, but the Irish units get all the press).
It kinda says something when a factory in Worcester MA is now a restaurant called Maxwell Silverman’s Toolhouse and another one not too far from me in NJ is now a studio called The Dance Factory.
“f rulings on law can be subordinated to threats of violence, then the rule of law is lost.”
The most salient point yet!
A liberal judge can’t make a liberal decision if he’s lying dead in an alley from a “robbery gone bad.”
Have you considered viarga rather than murder fantasies as a less dangerous way to get an erection?
I don’t know what “viarga” is, but thank you, Ms. Ellis.
Isn’t it a resort destination in Mexico? I think the Love Boat was always going there…
Yes, it’s actually known as “Puerta Viagra” and it’s on the Pacific coast, just south of Ciudad LeVitra.
jvb
No wonder it’s popular! Though if you stay for more than 6 hours you should see a doctor…
How does one become a “member?” 😀
I chuckled, I feel bad.
When you see death threats to judges like that, there are two ways of dealing with them.
If you think they’re blowhards, all hat but no cattle, engaging in hyperbole, by all means mercilessly mock them. The point is though, they don’t matter. Tales told by an idiot, full of sound and fury, signifying nothing.
The second way? If you take them seriously? Don’t be so unwise as to leave a forensic trail. Say and write nothing. Should someone else take them seriously, even if you have nothing to do with it, you may have difficulty convincing law enforcement of that. You have the right to remain silent, so exercise it, before as well as after.
So would Justices Kavanaugh and Gorsuch recuse as well, since they both were nominated by President Trump as well? Or is it the timing of Justice Barrett’s nomination that is the deciding factor? Or is it the fact that she appeared at the White House after her confirmation? Would Justice Thomas also have to recuse, due to Joe Biden being one of the loudest voices carrying the accusation of sexual assault? That could be seen as biasing Justice Thomas against Biden, as Justice Barrett could be seen as biased towards Trump.
I believe it would represent exemplary ethics for Barrett to announce that in an abundance of caution, out of concern for the need to avoid even the appearance of bias and impropriety, in acknowledgement of the dangerous level of division and distrust among the public, and most of all, because in the unlikely event that the Court has to make a decision that determines the outcome of this election, it is critical that such a ruling be regarded as above reproach, she will recuse herself even though she has no doubts that she is capable of ruling on such a case without being influenced by anything but the arguments of the litigants and her own judicial analysis.
And I can’t understand why this would qualify as exemplary ethics for Barrett and not for any of the other justices appointed by Trump.
I think all Trump’s appointed justices would be forced to recuse themselves based on this analysis, particularly Kavanaugh. After all, he was absolutely the poster child for much of the division you describe.
Sorry. Not convincing for lots of reasons, a partial list being:
1. Unless every single Justice nominated and confirmed during the Trump administration recuses, the idea that any decision coming from the Supreme Court regarding the election could be “above reproach,” especially considering the media’s disposition (not to mention the Left) is risible and naive.
There is no reason to believe the American people, apparently so disconnected they could somehow allow the media to hide the Biden family questions that arose during the election from their decision-making, would not be equally unable to consider a decision unfavorable to the left “above reproach.”
2. Speaking of that, how can we ask Barrett to recuse and not Kavanaugh and Gorsuch? Especially Kavanaugh, since his confirmation battle was the low-water mark in history and exacerbated partisan rancor far, far more than Barrett’s. Arguably, Kavanaugh owes far more to Trump and political influence for his confirmation than Barrett.
Now, if Mitch McConnell were at issue before the Supreme Court, I might be inclined to agree with you.
3. Recusal at this point in time would be tantamount to an acknowledgment that she is a political animal and not capable of the kind of dispassionate analysis required of her high office given such a tenuous relationship to a conflict that nearly every other modern justice has rejected. It would be an admission of unfitness, and that would be immediately seized upon by the Left, and arguably should be.
4. No other Justice in history (that I can think of) has done such a thing for such an overtly non-judicial reason, or without having a genuine conflict, interest, or prior involvement in the instant or closely-related case.
5. I almost forgot about Clarence Thomas. His wife met with Trump back in January of last year. He has arguably a stronger argument than the Trump justices for recusal.
6. Even if her recusal accomplished exactly what you hope, I would argue it would do more to exacerbate the division than heal it, and could provide the impetus for open conflict. The Right would doubtless take Barrett’s recusal as tantamount to abdication of her constitutional duty. It would be far worse than if she voted against the interests of the Right, because they are willing to accept her judgment, but not her surrender.
Feeling that the Left had managed to neuter the only institution left that could protect the Constitution, they might justifiably conclude the time to “[water] the tree of liberty” is upon us.
No, Barrett should not recuse. She should by all means consider it if the time comes, as should every Justice, but if she is the jurist that she represented herself to be, there can be no rational justification for recusal give what we presently know — only rationalizations that will make matters worse.
Just to be clear Jack, you want her to virtue signal?
Heh. Nice.
My thoughts exactly.
Jack wrote, “I believe it would represent exemplary ethics for Barrett to announce that in an abundance of caution, out of concern for the need to avoid even the appearance of bias and impropriety, in acknowledgement of the dangerous level of division and distrust among the public, and most of all, because in the unlikely event that the Court has to make a decision that determines the outcome of this election, it is critical that such a ruling be regarded as above reproach, she will recuse herself even though she has no doubts that she is capable of ruling on such a case without being influenced by anything but the arguments of the litigants and her own judicial analysis.”
So you think that Justice Barrett should publicly announce that she will primitively blanket recuse herself from any future SCOTUS decisions relating to the 2020 Presidential election? “ANY” case? Seriously she should recuse herself from fictional cases that don’t even exist. Wouldn’t it be a more judicially acceptable thing to evaluate each case as it arises to see if recusing herself is appropriate?
Isn’t it an anti-judicial thing to render a personal recusal judgement about cases that do not exist? This is not like it’s a conflict of interest involving her children or husband where an unspoken primitively blanket recusal would be fully expected.
Jack wrote, “Best of all, if there is no such case, as seems likely at this point, Justice Barrett will have improved her reputation and enhanced her perceived fairness and trustworthiness.”
Since when is a Supreme Court Justice supposed to pander to unwarranted partisan opposition to their appointment so they can “improved her reputation and enhanced her perceived fairness and trustworthiness”? This sounds to me like it would be judicially unethical to recuse themself from that which does not currently exist which would make this particular pandering to “improve her reputation…” look like a rationalization to justify unethical behavior.
Unless I’ve completely misunderstood something, which I admit is entirely possible since I’m not a lawyer, I have to disagree with the premise of this blog post.
P.S. From my perspective; this whole blog post seems a bit out of character to me, it feels like it’s a pop quiz to test the accumulated knowledge base learned over the last five years in ethics classes.
I just noticed an unintended spelling error; primitively should be preemptively in all locations. I know the difference I just didn’t pay attention.
And as long as we’re playing what-if scenarios, what if Justice Barret is the fifth vote on a 5-4 decision against Trump? What if she concurs in a 6-3, 7-2, or 8-1 vote against Trump? What if she rules in the minority for a 5-4 decision for Trump? If we’re worrying about whether the Left will ever accept her bona fides, shouldn’t she be given a chance to rule against Trump?
One word: Baloney.
In Bush v. Gore, shouldn’t all the Justices have recused themselves insofar as they were all appointed by either a Republican or Democrat? The case should have been decided by some neutral third year law students at Georgetown?
Absurd.
For an honorable person, very few things pose a dangerous conflict of interest. For a dishonorable person, just about everything does. That’s what honor is.
Honorable people serve the roles and principles they commit to even when it costs them or those they care about in other areas of their life. The problem is that humans in organized power structures tend to use interpretation mindset to confuse people about what honor is, in order to convince them that their team has all the honor and the other team has none of it, or else they simply claim that honor doesn’t matter.
Honorable and ethical people don’t need ethics rules.
True, honorable and ethical people don’t need ethics rules imposed on them, but they do have principles that they follow of their own accord, and those principles can be described in terms of general rules. Then we turn around and impose those rules on everyone so that we don’t have to rely on people being honorable and ethical.
It’s good to have standard rules, because rules makes things simpler and more efficient. However, they are not sufficient to keep things ethical. The rules work until people figure out how to a) follow the rules while still being unethical, b) prevent other people from thinking they’re breaking the rules, or c) prevent people from imposing consequences on them for breaking the rules, one way or another.
To keep society functioning, we will always need sufficient people of sufficient power who are actually honorable and ethical, to hold people accountable for violating the ethical principles on which the rules are based, even if those principles and the method of accountability cannot be codified into rules themselves. That is the necessity entailed by the Ethics Incompleteness Theorem you’ve described.