Judge Barrett refused on Tuesday to say whether she would recuse herself, if confirmed, from considering an upcoming case in which Republican states are trying again to get the Supreme Court to strike down the Affordable Care Act — or from any case that may arise if there is a legal dispute over the outcome of next month’s presidential election.
Under questioning from Mr. Graham about whether she would participate in the pending health care case, the nominee, who has criticized a past Supreme Court decision that declined to strike down a key part of the health care law, said whether a justice should recuse herself is a “legal issue” and “not a question that I could answer in the abstract.”
She also cited a statute that says, among other things, that judges should recuse themselves “whenever their impartiality might reasonably be questioned.” However, Judge Barrett also acknowledged that whether that standard has been met is up to each individual justice to decide for herself.
Later, under questioning from Senator Patrick Leahy, Democrat of Vermont — who noted that President Trump has said he needs his nominee confirmed because he thinks Democrats will try to steal the election from him and it will end up in court — Judge Barrett also did not answer, instead saying she would faithfully work through the process of deciding what to do.
Mr. Leahy observed that she had merely offered a “sort of boilerplate response on recusal.”
Supreme Court justices do not like to recuse themselves, in part because, unlike at the district and appeals court levels, there is no one to replace them if they step aside. If a justice decides to stay on a case despite accusations of a conflict of interest, there is no appeal.
Asked about other issues — notably abortion rights — Judge Barrett spoke about the doctrine of “stare decisis,” which says the Supreme Court should be reluctant to revisit issues it has previously decided.
But she noted that the legal question at issue in the upcoming Affordable Care Act case — whether the entire law must be struck down because one part of it has been deemed flawed, or whether the flawed part is “severable” from the rest — was not addressed in the earlier case, meaning there was no precedent to respect. And she signaled that she did not think she had said or written anything that expressed a view on the current matter.
“Really, the issue in the case is this doctrine of severability and that’s not something that I have ever talked about with respect to the Affordable Care Act,” she said. “Honestly, I haven’t written anything about severability that I know of at all.”
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