Independent Review of Judicial Recusal Necessary to Maintain Public Confidence in the Courts

November 30, 2016

Allowing judges to decide for themselves whether to step aside due to alleged bias poses a serious threat to judicial integrity, according to a new report by the Brennan Center for Justice.

Without independent review of recusal motions, self-interested judges may have the final say over alleged conflicts of interest, threatening the perception of fairness in our courts. This issue has become even more pressing as so-called “dark money” judicial campaign contributions from undisclosed, unaccountable sources have soared to record levels in an effort to influence the makeup of state supreme courts and the quality of justice they dispense.

State supreme court justices decide on their own disqualification motions in 35 states, with no opportunity for review short of the U.S. Supreme Court. In a majority of states, trial judges can rule on their own impartiality, and appellate review is often deferential. State codes of judicial conduct require recusal when a judge’s impartiality might reasonably be questioned. The Due Process Clause of the Fourteenth Amendment requires a judge to step aside when circumstances present a serious risk of bias. But in most states, and in most courts, the judges themselves decide whether there is a reasonable question regarding their impartiality.

While most recusal motions are likely meritless, there have been important cases where a judge’s refusal to step aside damaged public confidence in the courts. For example, the U.S. Supreme Court determined that a West Virginia supreme court justice violated due process by refusing to step aside from a major case involving his largest campaign supporter’s company. And this year, the U.S. Supreme Court held that the former Chief Justice of Pennsylvania violated due process when he refused to recuse himself from a case he oversaw in his prior job as district attorney.

Many states also use elections to select or retain judges, leading to huge spending by outside interest groups in judicial races. During the 2016 election cycle spending by corporations and other outside groups on judicial elections rose to a record $19.4 million, raising serious questions regarding potential conflicts of interest when those spenders have an interest in litigation.

“Judicial recusal is a crucial mechanism for safeguarding both the reality and perception of judicial integrity,” said Matthew Menendez, counsel for the Brennan Center’s Democracy Program and co-author of the study with Senior Fellow Dorothy Samuels. “These motions simply shouldn’t be decided by the judge whose impartiality is called into question.”

The report, Judicial Recusal Reform: Toward Independent Consideration of Disqualification, outlines several reforms necessary to bolster public confidence and ensure that all before the court receive fair and impartial justice. Its main recommendations are:

1.    Assign recusal motions to a judge who is not the subject of the motion

2.    Require judges to give recusal decisions in writing, for review on appeal

3.    Provide for meaningful independent review of denials of recusal motions

4.    Establish a clear system for replacing disqualified justices

5.    Allow one preemptory strike of an assigned judge at the trial level

The Brennan Center will continue to monitor and analyze trends in judicial recusal rules and norms, and to advocate for reforms that create sensible mechanisms for independent oversight to protect the integrity of our judiciary.