J. Michael Luttig served as a judge on the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006.
It is a foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court before the Nov. 3 presidential election. As soon as her first day, Justice Barrett may face the most momentous and difficult decision of her promised tenure of decades: whether to recuse herself from cases that could determine the outcome of that presidential election.
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. Continue reading.