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Although I think it's unlikely that the outcome of the election will be decided by the Supreme Court, it's reassuring to know that, if it did, legal precedent would compel Amy Coney Barrett to recuse herself.
At her confirmation hearings this past week, Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise. Barrett herself almost certainly does not know whether recusal is required and will not know until she is actually confronted with the question.
But as Barrett must already understand, her decision was made exponentially more difficult by Caperton v. A.T. Massey Coal Co., an inartful and mischievous 5-to-4 case decided more than a decade ago by the court she will soon join. The ruling would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.
Caperton involved a litigant who spent $3 million to help elect a West Virginia Supreme Court of Appeals justice, who then voted to reverse a $50 million damage award against his benefactor. The U.S. Supreme Court found that the judge should have recused himself. Writing for the majority, Justice Anthony M. Kennedy said that recusal may be constitutionally required even where a judge is not actually biased, if there is a “serious risk of actual bias.”