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Report

Promoting Fair and Impartial Courts through Recusal Reform

  • Adam Skaggs
  • Andrew Silver
Published: 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. 

Down­load Original Version (Febru­ary 2011)

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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/.