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Research Report

Judicial Recusal Reform: Toward Independent Consideration of Disqualification

Published: November 30, 2016

This report examines an important but underscrutinized challenge for fair and impartial courts: the procedural rules governing judicial disqualification. 


This report examines an important but underscrutinized challenge for fair and impartial courts. The procedural rules governing judicial disqualification in many state court systems fail to provide for meaningful independent consideration of recusal decisions by judges. While it is widely recognized that “no man should be a judge in his own case,” this standard often is not applied to judicial disqualification.

In some 35 states, state supreme court justices decide their own recusal motions with no opportunity for review short of the U.S. Supreme Court, which hears very few cases. In the majority of states, trial judges whose impartiality is challenged are permitted to rule on the motion themselves. On appeal, the review can be inappropriately deferential. Reform is required to bolster public confidence in judicial integrity and ensure that all litigants receive unbiased resolution of their cases.

Motions calling for a judge to step down in a particular case effectively place the judge and the validity of the judicial process on trial. Absent searching independent consideration, challenged judges themselves determine whether there are adequate grounds to question their own impartiality — a task for which, research and common-sense suggest, they are wholly unsuited. For a judge to ignore that simple truth would, as James Madison wrote more than 200 years ago in the Federalist Papers, “bias his judgment, and not improbably, corrupt his integrity.” That wisdom holds today.

Over the past twenty years, the Brennan Center has documented a variety of threats to fair and impartial courts. This new analysis is occasioned in part by the Supreme Court’s June 2016 ruling in Williams v. Pennsylvania, the second major opinion on an important recusal question by the nation’s highest court in just a few years. Like the Court’s 2009 ruling, in Caperton v. Massey, the 5–3 Williams decision declared that the Due Process Clause of the Fourteenth Amendment requires a judge to step aside when the circumstances of a case present a “serious risk of actual bias.”

In Williams the conflict of interest stemmed from an appellate judge’s participation in a case he oversaw in his prior job as district attorney. In Caperton, the conflict arose from massive campaign spending by a corporate litigant’s CEO in support of one of the judges hearing his company’s case. Caperton valuably highlighted the importance of recusal as a tool to protect judicial impartiality in the current judicial election environment, marked by massive amounts of spending (often through independent expenditures paid for by lawyers, frequent litigants, and groups with interests in the outcome of judicial decisions) and an escalation in inflammatory attack ads.

In both Williams and Caperton, notably, the Court did not address the inherent procedural conflict of allowing judges facing a recusal motion to be its sole decider — our prime focus here. In these opinions, both written by Justice Anthony Kennedy, the Court established a due process floor below which the risk of actual bias becomes constitutionally intolerable. The Court did not grapple with whether a credible and impartial mechanism to resolve recusal disputes is also an essential element of due process. Although the Court made clear that states are free to adopt rules providing more protection against real or apparent bias than is constitutionally required, and many have, too few states have moved to mandate consideration of recusal motions by a neutral, uninvolved judge.

But regardless of where states set their standard for recusal — whether at the constitutional floor (a “serious risk of actual bias”) or the more protective standard adopted by almost every state mandating recusal in “any proceeding in which the judge’s impartiality might reasonably be questioned” — it is critical that the determination of whether a judge is and appears to impartial not be left to the challenged judge. So the Brennan Center argued in an amicus brief submitted in the Williams case.

To begin our examination, this report reviews the crucial role of judicial recusal as a mechanism for safeguarding the reality and perception of judicial integrity. It then considers the risks of allowing judges to determine their own impartiality. Finally, the report offers a framework for strengthening independent review of recusal motions without unduly burdening already-scarce judicial resources, and examines the extent to which current state procedural rules provide — or fail to provide — meaningful independent review of recusal motions, thereby fulfilling the promise of due process.The egregious facts in both Caperton and Williams made it plain to the public, legal experts, and a majority of the U.S. Supreme Court that the impartiality of the challenged state court justices was very much in doubt. Somehow, though, it was not obvious to the judges themselves, both of whom publicly protested that they harbored no bias whatsoever. In the Williams opinion, Justice Kennedy seemed to refer to this ethical blind spot, observing that “[b]ias is easy to attribute to others and difficult to discern in oneself. Justice Kennedy did not elaborate on that observation, which suggests, at least, the logical next step of foreclosing states from granting a challenged judge the final word on whether his impartiality may reasonably be questioned.

These proposals will not answer every question, or address each potential scenario that may arise in different states using varied approaches for handling recusal motions. But individually and together, these simple principles can guide states in bolstering the integrity of the court system and public trust. Our proposed approach, detailed beginning on page 6, has five parts:

  1. In the first instance, assign recusal motions to a judge who is not the subject of the motion.
  2. Require judges to commit recusal decisions in writing, allowing for adequate review on appeal.
  3. Provide for de novo review of denials of recusal motions, particularly when the challenged judge decided the initial motion.
  4. Establish a clear, practical mechanism within the judicial system for replacing disqualified justices on state courts of last resort.
  5. Allow one preemptory strike of an assigned judge at the trial level.

Judicial Recusal Reform: Toward Independent Consideration of Disqualification