Right Way ABA

The American Bar Association (ABA) House of Delegates approved a judicial disqualification resolution today. The resolution urges states to establish clear procedures for dealing with judicial disqualification and calls for greater transparency of campaign spending in judicial races. The Brennan Center applauds the ABA’s for its leadership on judicial recusal and for taking this historic action.

The Brennan Center has consistently advocated for clear and comprehensive disqualification rules. We previously documented the threats that costly, negative, and special interest funded judicial election campaigns present to a fair and impartial judiciary. Indeed, numerous public opinion polls report that Americans are concerned about judicial neutrality in light of the ever increasing incursion of cash in the courtroom—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. In 2009, the U.S. Supreme Court recognized in Caperton v. Massey 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 Court also noted that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires. Nonetheless, more than two years after the landmark judicial disqualification decision, states have failed to implement meaningful reform. 

We hope that states will heed the ABA’s suggestions. We are pleased the ABA’s judicial recusal guidelines closely follow the proposals outlined in our study of state action on judicial recusal: Promoting Fair and Impartial Courts through Recusal Reform. 

As special interest spending in judicial elections continues to escalate, states must respond to the ABA’s resolution and develop new standards and procedures for judicial disqualification and related disclosure in order to preserve the fairness and impartiality of the judiciary.