Psst! Where are we probably headed? A fight about recusal.

I’ve read lots of notably vague “battle plans” and delaying tactics for Democrats to employ against Republicans’ plans to confirm a replacement justice for Justice Ruth Bader Ginsburg.  To be frank, the talk is largely masturbatory because the Republicans have the necessary votes.  There is one immediate hope: a disqualifying scandal could arise regarding Trump’s first nominee.  In the past, nominees for various positions have failed because of random disclosures (pot smoking, picayune tax cheating, etc.).  And the timing around this could push the nomination to the time of (assumption!) a Biden admin and Democratic controlled Senate.  It is our only hope, really.  But I wouldn't put much faith in that happening (see Kavanaugh nomination).

So . . . the unmentioned thing now is that the confirmation hearings for Trump’s nominee will likely turn on an argument that she should publicly recuse herself from any Supreme Court litigation concerning the 2020 election. 

Initially, this is important because Trump has already publicly stated that he considers this confirmation of his justice to be important precisely to help Trump in his efforts to win the 2020 election. 

So, let’s analyze that.  

Roughly stated, Supreme Justices agree that they should recuse if (citing to the lower court standard) her “impartiality might reasonably be questioned.”  (28 U. S. C. §455(a).). That lower standard — not actual conflict, not actual wrongdoing — but simply whether the justices impartiality “might reasonably be questioned,” is plainly met with this next Trump nominee and Trump’s own comments.

But note that Supreme Court Justices conceder the application of 29 USC 455(a) to be voluntary and that any conflict/recusal decision is left entirely to the non-reviewable discretion of  the individual justice. 

So, at some point during the new nominee’s confirmation, I predict that the true public pressure campaign will get her to publicly promise to recuse from any 2020 presidential election cases before the Supreme Court.

It would be the right decision, and the minimum that the next nominee should promise.