In Caperton v. Massey, Justice Kennedy made clear that states can require recusal even in situations that do not give rise to questions of constitutional significance. Justice Kennedy noted that “States may choose to ‘adopt recusal standards more rigorous than due process requires,'” and on this point, even the dissenting Justices agreed. Caperton's reiteration that the “‘constitutional floor’” is distinguished from the “ceiling set ‘by common law, statute, or the professional standards of the bench and bar’” echoed a point made by Justice Kennedy in his concurring opinion in Republican Party of Minnesota v. White. There, he wrote that to mitigate threats to 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, when the White decision was issued. And, as the facts of Caperton make clear, it has only become more critical in the years since. To provide states with guidance on reforming recusal or disqualification standards, we summarize the highlights of the recent Supreme Court decision and outline proposals for enhancing disqualification standards statewide. Broadly speaking, these proposals fall into three categories: those dealing with recusal procedures, those dealing with substantive recusal requirements, and those dealing with the transparency of the recusal/disqualification process.