As we all know, Supreme Court Justice Neil Gorsuch was only confirmed to the Supreme Court after, and as a result of, an unprecedented Republican embargo against President Obama’s nomination of Merrick Garland to replace the deceased Justice Scalia. Republican Senate Majority Leader Mitch McConnell defended this outcome as follows:
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” he said.
“The Senate will continue to observe the 'Biden Rule'*/ so the American people have a voice in this momentous decision. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.”
*/ Author’s note: no so-called “Biden Rule” exists, and then Senator Joe Biden voted to confirm Anthony Kennedy in the last year of Reagan's term (and while the Senate was considering whether to impeach President Reagan over the Iran-Contra Scandal).
So, the very legitimacy of the next Supreme Court Justice turned on the legitimacy of the upcoming presidential election vote. At his confirmation hearings, nominee Neil Gorsuch conceded that his nomination and confirmation were a matter of pure politics:
[W]hen Sen. Patrick J. Leahy, D-Vt., asked whether Garland had been treated fairly, Gorsuch demurred.
“I can’t get involved in politics,” he said. “There’s judicial canons that prevent me from doing that. And I think it would be very imprudent of judges to start commenting on political disputes.”
And Gorsuch repeated this stance when pressed later:
[Minnesota Senator] Franken explained that, “I think you’re allowed to talk about what happened to the last guy that was nominated in your position. You’re allowed to say something without getting involved in politics. You can express an opinion on this.” The senator pointed to the legitimate constitutional concerns that had been raised by the failure of the Republican-controlled Senate to even consider the Garland nomination.
But Gorsuch steadfastly refused to respond. “Senator,” said Trump’s nominee. “I appreciate the invitation, but I know the other side has their views of this, and your side has your views of it. That, by definition, is politics. And Senator, judges have to stay outside of politics.”
OK . . . This is all politics — outside the proper realm of the judiciary. And whether that dodge was appropriate or not, it is true that, by the Republicans' own machinations, Justice Gorsuch’s legitimacy rested on the legitimacy of the last election cycle. We had a situation here so admittedly political and unusual that the Justice himself feels constrained from even speaking about the circumstances surrounding his own nomination. For him to even speak on such matters, even outside the courtroom — Justice Gorsuch has conceded — would be improper and in violation of judicial cannons.
This leads to two conclusions: (i) Justice Gorsuch must recuse himself from any litigation that reaches the Supreme Court concerning the legitimacy of the last election, including allegations that Russian actors illicitly intervened to elect President Trump and whether President Trump should testify on such matters before a Grand Jury, and (ii) Justice Gorsuch should resign if it is determined that President Trump or his campaign colluded with the Russian efforts to interfere in the last election.
Let’s address each issue in turn.
Justice Gorsuch Must Recuse Himself From Any Litigation Concerning The Trump-Russia Investigation
Before addressing the precise legal standards, it is important to reiterate what this is not about: I am not arguing that a sitting Justice necessarily cannot decide a case involving the President who appointed him or her, nor am I arguing that a Justice per se could not consider questions relating to the impeachment of the President that appointed him or her. (For example, Nixon-appointed Justices Burger, Blackmun and Powell joined in the unanimous Supreme Court opinion ordering Nixon to turn over the Watergate tapes, while Justice Rehnquist recused himself from the same decision because he had previously served in the Nixon administration as an Assistant Attorney General.) Abstractly put, it is an individualized determination, and here, specifically, Justice Gorsuch faces direct,personal conflicts that have never been present for a Justice before.
In other words, this is not a situation of an imputed conflict, and this is not a remote conflict of the President who nominated Mr. Gorsuch. Rather, these matters — the integrity of the 2016 election – involve Mr. Gorsuch’s direct and personal conflicts. He cannot be both the judge and beneficiary of the same vote.
As to the legal standards for recusal by a Supreme Court Justice, I thought I would quote the standards set forth by Justice Scalia in his memorandum explaining his refusal to recuse himself in a case involving then Vice President Dick Cheney — a personal friend of Scalia, and with whom Scalia had recently flown to a joint vacation aboard Air Force Two:
[R]ecusal is required if . . . [the Justice’s] “impartiality might reasonably be questioned.” 28 U. S. C. §455(a). . . . It is well established that the recusal inquiry must be “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Microsoft Corp. v. United States, 530 U. S. 1301, 1302 (2000) (REHNQUIST, C. J.) (opinion respecting recusal) (emphases added) (citing Liteky v. United States, 510 U. S. 540, 548 (1994)). [Note: the Justices make this determination, unreviewable, on their own.]
Thus, the standard is not restricted to impartiality in fact, but whether the impartiality of Justice Gorsuch “might be reasonably questioned” by a “reasonable” and informed observer. Here, Justice Gorsuch has direct personal, reputational and professional interests at stake in the outcome of any criminal prosecution questioning the legitimacy of the 2016 election. And as Mr. Gorsuch testified under oath, the circumstances surrounding the rejection of Mr. Garland, and his ascension in Mr. Garland’s place, are purely political— so political that Mr. Gorsuch could not even be expected to answer questions, even outside the courtroom, about such matters. Surely then, Mr. Gorsuch cannot sit in judgment, cast a vote, and potentially cast the deciding vote, about such personal, conflicted and political matters. Surely then, a reasonable observer would find that Justice Gorsuch’s impartiality might reasonably be questioned, if not be (reasonably) flat-out rejected.
Thus, under the governing standards, Justice Gorsuch has to recuse himself from any Trump/Russia Supreme Court litigation. Prior Justices have recused themselves over much, much smaller and distant conflicts. And, for example, current Attorney General Jeff Sessions not only recused himself from these same questions concerning Russian interference and the Trump campaign, but also recused himself from any investigations or prosecutions involving Hillary Clinton. Justice Gorsuch is under no lighter obligations.
Note: to fully appreciate this thorny, fraught situation, it must be acknowledged that each Justice will decide for his or herself whether to recuse from a particular case, and such decision is not only not subject to appeal, but is also unreviewable by their fellow Justices. Chief Justice Roberts has expressed the notion in self-satisfied terms as follows:
I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.
In addition, Gorsuch’s recusal would potentially leave the Supreme Court open to the threat of a 4-4 tie. Supreme Court justices both appropriately recuse themselves and other times cite to the threat of a 4-4 tie as a unique circumstance to justify a refusal to recuse themselves. A 4-4 tie here, however, is no argument to enable Mr. Gorsuch to cast a conflicted, tie-breaking vote; quite the opposite. If a tie vote scenario arises on this matter of national security and signficance, well . . . then . . . it will be time for Chief Justice Roberts to step up to the plate, to consider the legacy of the “Roberts Court,” and to protect the institutional integrity of the Supreme Court. He yearned for this job; he has it now.
The bottom line — despite all the perhaps predictable hostility and obfuscation — is that US Supreme Court Justices have recused themselves regularly and for comparatively minor reasons (even relatively small financial holdings) — and Justice Gorsuch's recusal is plainly required here. I am not arguing that J. Gorsuch will do the right thing — or that any statutory or other scheme will force the right outcome. Rather — like the potential firing of the Attorney General, Deputy Attorney General or Special Prosecutor, this is another area where citizens need to be vigilant and may need to be proactive and determined to fight for the right thing. It is the silence about this matter that troubles me most.
Justice Gorsuch Should Resign If It is Shown That The Trump Campaign Colluded With Russia.
Should it develop that Special Prosecutor Robert Mueller (or Congress) determines that Mr. Trump and/or his campaign colluded with the Russian interference with the 2016 election, then Justice Gorsuch should resign as Supreme Court Justice. (Note: I believe that collusion already has been established, but I am realistic enough to know that some official imprimatur is needed here.)
Notice that I say that he “should” resign, while above I write that he “must” recuse himself from related litigation. The latter is correct. But the unfortunate truth is that there is no law, rule, norm or even precedent to require Justice Gorsuch to resign. This will be a matter of personal character and honor.
As Gorsuch’s champion, Sen. Mitch McConnell, argued above: “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different.” What cannot be countenanced is that the Russian government may have determined the next Supreme Court Justice.
So, if it comes to it, Justice Gorsuch should resign, for the good of the institution and the good of the country. After all . . . he can still be nominated by the next president.
To be clear, Justice Gorsuch's resignation would not be a sign of personal dishonor or complicity. Rather, it would be both appropriate and exemplary. In full disclosure, I have not been impressed in the past with Justice Gorsuch’s character. But hope springs eternal. Since former President John F. Kennedy apparently has become popular among today’s Republicans, I will close with his words, as a plea to Justice Gorsuch, if nothing else:
In whatever area in life one may meet the challenges of courage, whatever may be the sacrifices he faces if he follows his conscience – the loss of his friends, his fortune, his contentment, even the esteem of his fellow men – each man must decide for himself the course he will follow. The stories of past courage can define that ingredient – they can teach, they can offer hope, they can provide inspiration. But they cannot supply courage itself. For this each man must look into his own soul.
– John F. Kennedy
Profiles in Courage