Skip Navigation

Fair Courts: Setting Recusal Standards

  • James Sample
  • David Pozen
  • Michael Young
Published: April 1, 2008

This paper takes its cue from Justice Anthony Kennedy’s concur­rence in the 2002 case of Repub­lican Party of Minnesota v. White. In White (discussed in greater detail in the body of the paper), Justice Kennedy wrote that in response to dynam­ics perceived to threaten the impar­ti­al­ity of the courts, states “may adopt recusal stand­ards more rigor­ous than due process requires, and censure judges who viol­ate these stand­ards.” The need for states to heed Justice Kennedy’s advice was crit­ical in 2002—and has only become more crit­ical in the years since.

The paper describes the increas­ing threats to the impar­ti­al­ity of Amer­ica’s state courts and argues that they have been spurred by two trends: the grow­ing influ­ence of money in judi­cial elec­tions and the dismant­ling of codes of judi­cial ethics that once helped to preserve the distinct­ive char­ac­ter of the judi­ciary, even during the course of campaigns for the bench. While acknow­ledging that more sweep­ing—and contro­ver­sial—meas­ures are ulti­mately needed to fully address the emer­ging threats to impar­tial courts, this paper focuses on how judges, courts, legis­lat­ors, and litig­ants can maxim­ize the due process protec­tion that stronger recusal rules poten­tially afford. Tech­nic­ally, there is a differ­ence between disqual­i­fic­a­tion and recus­al—dis­qual­i­fic­a­tion is mandat­ory, recusal is volun­tary—but the differ­ence is often blurred because in the many juris­dic­tions in which judges adju­dic­ate chal­lenges to their own qual­i­fic­a­tion to sit, disqual­i­fic­a­tion func­tions essen­tially as recusal. In this paper, we use the terms inter­change­ably but distin­guish between mandat­ory and volun­tary removal of a judge from a case.

We first describe the trends under­min­ing public confid­ence in the courts and explain how, in a recent decision, the United States Supreme Court exacer­bated the impact of those trends. Second, we explain why current recusal prac­tice is marked by under­use and under­en­force­ment. Third, we exam­ine the case of Avery v. State Farm Mutual Insur­ance Company as a means of illus­trat­ing the real-world implic­a­tions of the dynam­ics discussed in the first two parts of the paper. In Avery, the plaintiffs were unable to remove a judge who, during his campaign, received substan­tial finan­cial support from indi­vidu­als and organ­iz­a­tions closely asso­ci­ated with the defend­ant, while the case was pending before the court. Finally, we offer ten propos­als to strengthen the fair­ness and legit­im­acy of state recusal systems.

Some of the proced­ures we recom­mend are already in place in some states. Others are more novel and demand­ing. All would help protect due process.