Reinvigorate Recusal Reform

The Brennan Center and Justice at Stake announced today support for a plan requiring neutral judges to decide recusal motions.

February 10, 2011

The Brennan Center believes that clear and comprehensive disqualification rules are essential to a fair and impartial judiciary.  As judicial elections over the past decade have morphed into the realm of high cost negative politicking, numerous public opinion polls report that Americans are concerned about judicial neutrality—three in four believe that campaign spending can influence courtroom decisions and a similar majority overwhelmingly agree that a challenged judge should not have the final say on his or her own disqualification.

Reforming disqualification practices in state courts is one way to reassure the public that judges’ decisions are not held captive by partisan political concerns nor—in the 39 states that elect judges—judicial campaign spending.  To that end, the Brennan Center advocates for clear and comprehensive recusal rules that protect due process and promote public confidence in the judiciary. 

In 2009 the U.S. Supreme Court issued a landmark decision in Caperton v. Massey.  Recognizing that there was a “serious, objective risk of actual bias” when a judge refused to step aside from a case involving his principal benefactor, the Supreme Court disqualified the judge.  At the same time, the Court noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires.

Meanwhile, the American Bar Association (ABA) then-president H. Thomas Wells Jr. applauded the ruling and announced that the ABA would develop “a series of guidelines for courts to assess whether contributions to judges’ campaigns implicate the due process rights of parties appearing before them. This evaluative process is one way to restore the public confidence in our courts so critical to preserving our government of laws.”  The ABA convened a Standing Committee on Judicial Independence, which recently submitted a Resolution and Report on judicial disqualification to the ABA House of Delegates for full consideration.  Today, the Brennan Center and Justice at Stake sent a joint letter to the ABA, expressing support for ABA efforts to energize state court recusal reform.

The letter identifies two fundamental principles that the ABA should articulate as minimum standards for state recusal reform efforts.  First, states must ensure objective decisions on disqualification requests by implementing a process of neutral review.  Secondly, in recognition of the increasing significance—and danger—of money in judicial elections, states must also outline a policy for campaign finance-induced recusal, including disclosure rules.

Observers predicted that the Caperton ruling would affect state judicial elections nationwide.  While many states have considered recusal reform, only a handful have implemented meaningful policy changes.  The Brennan Center examined state action over the past two years and analyzed current judicial disqualification rules.  In Promoting Fair Courts through Recusal, the Brennan Center outlines positive, realistic, and easily implemented steps states can take to embrace meaningful recusal standards.

To begin with, states should not rely on a challenged judge to make the final decision on whether his or her impartiality can reasonably be questioned.  If a judge denies a recusal request, states should provide for prompt, meaningful review of the denial.  States must create disqualification rules that ensure the challenged justice does not have the sole, unreviewable discretion to decide a recusal request.  The report identifies the procedure for handling recusal requests in Georgia’s Supreme Court as a model for ensuring a challenged justice is not the final arbiter of a motion for his or her disqualification, and urges states to take care to require transparent decision-making on recusal requests so that meaningful review is possible.

The Brennan Center has consistently argued for comprehensive disclosure requirements.  Here, we again stress that states should acknowledge that judges’ impartiality may reasonably be questioned—and disqualification may be necessary—because of judicial campaign spending by litigants or their attorneys.  An ideal disqualification rule should approach campaign finance-induced disqualification with a big-picture perspective and address not only the overall amount a party (or counsel) spent on contributions and expenditures, but also additional factors that bear on perceptions of a judge’s impartiality, including the relative size of a party’s contributions in comparison to the total amount of money raised by a judge and his or her opponent(s); the ratio of the party’s spending to the total amount spent in the election; the apparent effect of the party’s spending on the results of the election; and whether the party’s spending occurred while the litigation in question was pending or imminent.

As special interest spending in judicial elections escalates, disqualification guidelines and related necessary disclosure rules are essential to protect fair and impartial courts. Recusal does not threaten the independence of the judicial branch, rather clear and comprehensive rules enhance the judiciary by creating transparency and shoring up confidence in a cornerstone of American democracy—the judiciary.