Judge Barrett’s Ethical Duty: Declare That Trump Cannot Influence Her
When it comes to the faithful adherence to her code of ethics, Judge Amy Coney Barrett, the Supreme Court nominee, is already skating on thin ice. The reason is that Canon 2B of the Code of Conduct for United States Judges states: “A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.”
The last clause requires her to speak. She must remove any hint that President Trump can influence her on election matters — or any matters of interest to him. She still has time to redeem herself during Judiciary Committee hearings. But it should not take that long for Judge Barrett to make a clear public statement declaring that she will not permit anyone “to convey the impression that he is in a special position to influence” her views, including the President who nominated her.
Is Mr. Trump conveying such an impression? Pay attention to his recent rallies, debates, and other public appearances. Beyond his bravado in stating at rallies that his nominees will uphold gun rights and re-criminalize abortion while his opponent will name judges to do the opposite, the President has flatly stated that one reason he wants to quickly confirm a new justice is to protect his presidency against what he claims are fraudulent mail-in or absentee ballots. This has the clear potential for flagrant electoral corruption: in return for selecting the judge as his Supreme Court nominee, the judge provides private assurances that the President will receive a favorable vote on any matters affecting his re-election. Proof is not the issue. The issue is perception, whether he is “conveying the impression.”
Just before naming Barrett, during a discussion broadcast Sept. 23 on C-Span, the President was asked if he wanted the full nine judges on the Supreme Court to handle challenges to the use of what he was calling “cheap” counterfeit ballots. He answered: “Yes, I think it’s very important. I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices.” He added: “I think we should go very quickly. You see the Republicans are very united.” And he noted that a Senate vote on his nominee could come before or after the election, then said: “But I think it’s better if you go before the election because I think this — this scam that the Democrats are pulling — it’s a scam — this scam will be before the United States Supreme Court. And I think having a 4–4 situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be 8-nothing or 9-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth justice.” In other words, if President Trump decides that a ruling might be “political,” he wants a political counterweight: his latest nominee.
In the first presidential debate on Sept. 29, after he nominated Judge Barrett, the President was asked a similar question by moderator Chris Wallace: “And are you counting on the Supreme Court, including a Justice Barrett, to settle any dispute? He replied: “Yeah. I think I’m counting on them to look at the ballots, definitely. I hope we don’t need them, in terms of the election itself. But for the ballots, I think so, because what’s happening is incredible.”
The President is clearly leaving the impression that he will get the court votes he wants from this nominee. And we know that he has leverage. He can withdraw her nomination at any time. None of this is Judge Barrett’s fault. Yet she now has a responsibility under her code of conduct — and for the sake of intellectual honesty — to put to rest such impressions of corruption. It is certainly fair for the Senate to ask what assurances Judge Barrett gave to the President about her inclination in judicial matters of interest to him. And it is imperative that the Senate state that the president’s statements leave the impression that he can influence her, given that he is publicly counting on her vote on the court to do what he wants with respect to mail-in ballots. The question for Judge Barrett is, why is she permitting the President to convey such a corrupt impression about what her role on the Supreme Court will be, in violation of the Code of Conduct for United States Judges?
Judge Barrett should also consider Canon 4 of the code: “A judge should not participate in extrajudicial activities that … reflect adversely on the judge’s impartiality” or “lead to frequent disqualification.” By agreeing to conduct a round of private interviews with Senators of President Trump’s party, she is engaging in what has now become a highly politicized process that at least has the potential to reflect adversely on her impartiality. If she truly wants to convey impartiality, she should remain at home in South Bend until Judiciary Committee hearings start, stand before the committee on her character and record, answer forthrightly, and not take any coaching from the White House or private meetings with Senators. Let her stand and be judged in public as her own person.
Having watched the outcome of misconduct complaints against Judge Brett Kavanaugh for his flagrant ethics violations during his own confirmation hearing (making partisan statements), Judge Barrett knows that if she ascends to the high court, she will no longer be subject to any code of conduct or any sanction for statements during confirmation. That is a separate issue that Chief Justice John Roberts can fix, and the sooner he does so, the sooner the court’s reputation will halt its dangerous slide.