Promoting Fair and Impartial Courts through Recusal Reform

August 8, 2011

To assist state courts in responding to the need for recusal reform, the Brennan Center for Justice has collected model rules that provide a blueprint for state implementation. 

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Promoting Fair and Impartial Courts through Recusal Reform

Adam Skaggs and Andrew Silver[1]
Revised August 2011

[N]ow as never before, reinvigorating recusal is truly necessary to preserve the court system that Chief Justice Rehnquist called the “crown jewel” of our American experiment.

                                    The Honorable Thomas R. Phillips
                                    Retired Chief Justice, Supreme Court of Texas[2]

Reforming judicial disqualification practice in the states is necessary to combat mounting threats to public confidence in the judiciary.  In particular, recusal reform is needed to defeat the growing perception that judges’ decisions in the courtroom are influenced by partisan political concerns and — in the 39 states that elect judges — judicial campaign spending.  State and national surveys have repeatedly shown that large, bipartisan majorities are extremely wary of the role that money plays in judicial elections and believe that campaign funding support buys favorable legal outcomes.[3]

In 2009, the U.S. Supreme Court recognized the corrosive effect that outsized judicial campaign spending can have on public perceptions of judicial legitimacy.  In Caperton v. A.T. Massey Coal Co.,[4] the Court concluded that it violated the Constitution’s guarantee of a fair, impartial tribunal when a judge who had benefitted from more than $3 million in campaign spending by the CEO of the Massey coal company — more than the total amount spent by all the judge’s other supporters, and by his own campaign committee — cast the tie-breaking vote to throw out a $50 million damages award Massey was appealing.  Recognizing that there was a “serious, objective risk of actual bias”[5] when the judge ruled on his principal benefactor’s case, the Supreme Court disqualified the judge.  At the same time, the Court emphasized that states would be well served to adopt recusal rules “more rigorous” than the Constitution requires.[6]

Two years after Caperton, although a handful of states have adopted promising new rules, the majority of state courts have failed to adopt any reforms that respond to the threats identified by the U.S. Supreme Court. 

The issue is, if anything, more relevant today than it was two years ago.  Judicial spending continues to spiral out of control.  Such spending in the decade between 2000 and 2009 more than doubled what was seen in the 1990s.[7]  In 2010, runaway spending in judicial elections reached uncontested retention elections in several states, introducing expensive and politically driven electioneering to races that had hitherto avoided the trends affecting contested judicial elections.[8]  And a highly politicized (if nominally non-partisan) 2011 supreme court election in Wisconsin shattered records for special interest spending on television advertising in a judicial contest.[9]  These trends show no signs of abating, making it imperative that state courts accept the Supreme Court’s invitation in Caperton and adopt strong recusal policies.


[1] Adam Skaggs is Senior Counsel in the Democracy program at the Brennan Center.  Andrew Silver is a graduate of NYU School of Law who worked with the Brennan Center’s Fair Courts project as a third-year law student.

[2] James Sample et al., Brennan Center for Justice, Fair Courts: Setting Recusal Standards 3 (2008), available at http://www.brennancenter.org/recusal_standards (“Setting Recusal Standards”).

[3] See, e.g., Adam Skaggs, Brennan Center for Justice, Buying Justice: The Impact of Citizens United on Judicial Elections 4-7 (2010), available at http://www.brennancenter.org/buying_justice (collecting survey data on national and state level data demonstrating that Americans believe, by significant margins, that campaign spending has an impact on judicial decision-making).  A recent national survey conducted by Harris Interactive showed widespread, bipartisan concern about the escalating influence of money in judicial elections and its potential to erode impartiality.  See Press Release, Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions (Sept. 8, 2010), available at http://tinyurl.com/2c422fs.  Among the findings of the survey were the following:  71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. Id.  Only 23 percent of all voters believe campaign expenditures have little or no influence on elected judges. Id.  In addition, 82 percent of Republicans, and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election. Id.  Finally, 88 percent of Republicans, and 86 percent of Democrats, say that “all campaign expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking to elect each candidate. Id.

[4] 129 S. Ct. 2252 (2009).

[5] Id. at 2265.

[6] Id. at 2267 (quoting Republican Party of Minn. v. White, 536 U.S. 765, 794 (2002) (Kennedy, J., concurring)).

[7] See generally James Sample et al., The New Politics of Judicial Elections 2000-2009:  Decade of Change (2010), available at http://www.brennancenter.org/NPJE09 (“New Politics:  Decade of Change”).

[8] See Press Release, Brennan Center for Justice, 2010 Judicial Elections Increase Pressure on Courts, Reform Groups Say (Nov. 3, 2010), available at http://www.brennancenter.org/content/ resource/2010_judicial_elections_increase_pressure_on_courts_reform_groups_say/.

[9] See Press Release, Brennan Center for Justice, Special Interest TV Spending Sets Record in Wisconsin (Apr. 5, 2011), available at http://www.brennancenter.org/content/resource/ special_interest_tv_spending_sets_record_in_wisconsin/.