invigorating judicial disqualification

26 JUDICATURE Volume 92, Number 1 July-August 2008

The time has come for all courts—and particularlyelected courts—to take active measures torestore public trust. Without a meaningful

response to legitimate concerns induced by their owncampaign-related behavior, judges cannot expect thepublic to rise to their defense when their authority isquestioned on illegitimate grounds. To protect judicialindependence, courts must embrace the public demandfor accountability—in its procedural sense. Courts mustdemonstrate their accountability for the decisions theymake by more aggressively distancing themselves fromsituations in which their fairness and impartiality mightreasonably be questioned.

With the canons of judicial conduct looking increas-ingly precarious in the wake of Republican Party of Min-nesota v. White, courts and litigants are left with preciousfew reliable mechanisms to safeguard the constitutionalright to due process. Recusal is one such remaining safe-guard, and, because it is tailored to the specific factualcircumstances of the case at issue, it does not trigger thesame First Amendment scrutiny as canons limiting politi-cal speech.1 To combat the growing threats to judicialindependence and impartiality—and the inadequacy ofjudicial disqualification, as currently utilized —we pro-pose here some possible solutions.

Specifically, we offer 10 proposals with the potential toinvigorate dramatically the protections offered by dis-qualification. We first suggest nine possible reforms tosystems of disqualification that courts could implementunilaterally—what we will call internal solutions. Some of

these reforms could also be implemented by state legisla-tures. We then suggest an additional reform that citizensmight undertake even without the imprimatur of thecourts—what we will call an external solution. We make noclaim to the originality of our list, but it offers an array ofrecusal reform options for courts interested in preservingtheir independence and impartiality.

We recognize that all of these proposals require trade-offs among the benefits and risks they present. On theone hand, strengthening disqualification rules may be ameans to safeguard due process and public trust in thejudiciary.2 On the other hand, strengthening these rules

INVIGORATING

JUDICIAL

DISQUALIFICATION

TEN POTENTIAL REFORMS

by JAMES SAMPLE and MICHAEL YOUNG

This article is excerpted from Fair Courts: Setting Recusal Standards, availableon the Brennan Center for Justice website at http://www.brennancenter.org/content/resource/fair_courts_setting_recusal_standards/

1. Drawing on Justice Kennedy’s concurrence in White, courts that haveinvalidated canons regulating campaign speech, fundraising, or politicalactivity have upheld canons mandating disqualification when impartialitymight reasonably be questioned. See, e.g., Indiana Right to Life, Inc. v. Shep-ard, 507 F.3d 545, No. 06-4123, 2007 WL 3120095, *5 (7th Cir. Oct, 26, 2007);Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006), appealdocketed No. 06-3290 (10th Cir. Aug. 17, 2006); Alaska Right to Life Pol.Action Comm. v. Feldman, 380 F. Supp. 2d 1080, 1083 (D. Alaska 2005)vacated, 504 F.3d 840 (9th Cir. 2007); North Dakota Family Alliance, Inc. v.Bader, 361 F. Supp. 2d 1021,1039 (D.N.D. 2005); Family Trust Fund of Ky. v.Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).

2. Sometimes one hears the argument that disqualification rules con-cerned with minimizing the appearance of bias will have the perverse effectof distracting attention from more pressing issues of actual bias, of elevatingappearance over reality. See, e.g., Alex Kozinski, The Real Issues of JudicialEthics, 32 HOFSTRA L. REV. 1095 (2004). This line of argument, in our view,slights the instrumental value of avoiding the appearance of bias both forpreserving public confidence in the judiciary (and in public institutionsmore generally) and, more basically, for rooting out actual bias that wouldotherwise be undetectable.

may increase administrative burdensand litigation delays, open newavenues for strategic behavior (suchas judge shopping), and underminea judge’s duty to hear all cases. Thesetradeoffs demand that any solutionbe carefully designed and imple-mented, and we do not mean to min-imize that task by providing only acursory sketch of each reform option.

Nine internal solutionsInvigorating recusal standards in anyparticular jurisdiction is unlikely torequire acceptance of all of the pro-posals we describe. Indeed, some ofthe procedures we recommend arealready in place in some states.3

Implementing certain suggestionswould obviate the need for others.The value of each reform willdepend upon the context into whichit is introduced.

1. Peremptory disqualificationJust as the parties on both sides ofcriminal trials are permitted to strikea certain number of people fromtheir jury pool without showingcause, so might litigants be allowedperemptory challenges of judges.About a third of the states alreadypermit counsel to strike one judgeper proceeding.

One example is Montana, whereeach party in a criminal or civil mat-ter is allowed one “substitution” of ajudge.4 The only requirementsplaced on the party moving for sub-stitution are that the motion be filed

in a timely manner (within 30 daysafter service of summons) and, incivil cases, that it be accompanied bya $100 fee. Peremptory disqualifica-tion has the potential to substan-tially increase the frequency ofdisqualification, and it denies judgesthe opportunity to defend them-selves against charges of partiality.Its great advantage, though, lies inits simplicity: by granting litigantsone “free pass,” peremptory disqual-ification allows most of them tosecure an unbiased judge withoutthe expense, unseemliness, and ret-ribution risk of a disqualificationchallenge. If the next-assigned judgeis also unsatisfactory, the litigantmay challenge her for cause.

Opponents of peremptory disqual-ification have typically raised twomain arguments against it: that it will

www.ajs.org JUDICATURE 27

3. Systematic comparative research into theusage and efficacy of the various policies alreadyin place is sadly lacking.

4. MONT. CODE ANN. § 3-1-804 (2005).

19 States allowing peremptory disqualification


lead to “abuses”—instances in whichthe litigant exercises a peremptorystrike not out of sincere due processconcerns but rather because theassigned judge seems unfavorable—and that it will burden judicial admin-istration.5 Abuse is always a risk, butthe criticism applies equally toperemptory challenges of venireper-sons, which we nevertheless use topromote confidence in the jury’s fair-ness. Jurisdictions may be able todeter peremptory challenges ofjudges for truly ungrounded or offen-sive reasons by requiring an affidavitexplaining the challenge.6

Some amount of administrativedisruption is likewise inevitable. Butby capping peremptory challenges atone per proceeding and requiringthem to be made at an early stage(before the removed judge hasinvested time and energy familiariz-ing herself with the case), disruptioncan be kept to a minimum. Againstthese costs, the great appeal ofperemptory disqualification is that ofall the plausible reforms it providesthe most straightforward, robust pro-tection of judicial impartiality. Evenwhere peremptory challenges existon the trial court level, however,other measures are needed in thecontext of appeals.

2. Enhanced disclosureIn the wake of the White decision,enhanced disclosure might be one ofthe simplest and most importantreforms available. Judicial candidatesnow are more likely to make cam-paign statements on controversiallegal and policy questions. Some ofthose statements—particularly whenthey reflect actual or implied prom-ises about how the judge will decidecertain classes of cases—might sup-port reasonable doubts about thejudge’s impartiality. Judges could berequired to file with their clerk’soffice copies or transcripts of all cam-paign advertising and statements,which the court could then makeavailable for public inspection byparties in a case. Without such disclo-sure requirements, the burden oftracking down such information maybe prohibitive for many litigants.

Similarly, judges could berequired to disclose informa-tion about their campaignfinances. Although campaignfinance laws in every statenow mandate reporting ofcampaign contributions andexpenditures,7 the stringencyand enforcement of disclo-sure provisions vary widely.Even when disclosure rulesare sound, moreover, infor-mation about a particularjudge may be difficult toobtain. In states with canonsproscribing the direct solici-tation of contributions byjudicial candidates, the courtclerk’s office might be askedto provide the parties withcampaign finance reports, sothat these disclosures do notvitiate efforts by conscien-tious judges to insulate them-selves from the potentiallydistorting influence of thatinformation.

More generally, at the outset ofthe litigation, judges could berequired to disclose orally or in writ-ing any facts that might plausibly beconstrued as bearing on the judges’impartiality. Such a mandatory dis-closure scheme would shift some ofthe costs of disqualification-relatedfact finding from the litigant to thestate. It would also increase the repu-tational and professional cost tojudges who fail to disclose pertinentinformation that later emergesthrough another source.

States have taken variousapproaches on this front. Most stateshave adopted the Model Code’s Rule2.11(A) (see page 10) in one form oranother. However, states have differedon whether judges are required to dis-

close any information that might beconsidered relevant for recusal or dis-qualification purposes. Iowa requiresthat a judge disclose on the recordinformation the judge believes mightbe relevant to the question of disqual-ification, even if the judge believesthere is no real basis for disqualifica-tion.8 However, in Michigan, a judgeis not required to disclose any infor-mation concerning disqualificationbut is merely encouraged to do so bythe applicable canon.9

To further enhance the disclosureof relevant information concerningdisqualification, some states providea centralized system through whichattorneys and their clients can reviewa judge’s recusal history. Alaskacourts utilize a system that assigns a

for elective office to file reports disclosing all cam-paign contributions and, for contributions over acertain amount, the names of contributors.”).

8. IOWA CODE § 602.1606 (2006); see also IowaCode of Judicial Conduct Canon 3(D) (2007)(stating that instead of remitting or disqualifyinghimself/herself a judge may disclose the relevantinformation concerning disqualification to theparties and receive written consent to proceed asthe adjudicator despite the potential conflict).

9. Mich. Code Judicial Conduct 3(C) (2007). 10. Recusal Survey, National Center for State

Courts, Alaska Survey Response (2007) (on filewith author).

5. See Debra Lyn Bassett, Judicial Disqualificationin the Federal Appellate Courts, 87 IOWA L. REV. 1213,1254 (2002).

6. See RICHARD E. FLAMM, JUDICIAL DISQUALIFICA-TION: RECUSAL AND DISQUALIFICATION OF JUDGES §3.8, at 76-79 (1996) (describing peremptory dis-qualification jurisdictions that require the filingof a timely motion, a supportive affidavit, and acertification of good faith in order for disqualifi-cation to be granted).

7. See Stuart Banner, Note, Disqualifying ElectedJudges from Cases Involving Campaign Contributors, 40STAN. L. REV. 449, 463-66 (1988). (“All fifty statesand the District of Columbia require candidates

ARTVILLE


special code to cases that have beenreassigned due to a judge’s recusal.The database of these cases is acces-sible to the public, allowing one totrack the number of recusals for aspecific judge. Parties interested indetermining the reasons for therecusals, however, must inspect theindividual case files, as such informa-tion is not stored in the database.10

Objections to these proposalsmight emphasize the added burdenon judges or clerks, the potentialintrusiveness on judges’ privacy, orthe low probability that judges woulddisclose many of the most relevantfacts. (For example, no one will say,“I am a racist” or “I feel beholden tothe trial lawyers who supported mycampaign.”) The practical burdenon judges is small, however, and themarginal cost to their privacy isslighter still, because judges alreadyhave an ethical obligation to disclosepertinent facts, even if this obliga-tion has not been formalized into alegal rule.11 While it may be true thatno disclosure policy could forcejudges to disclose their biases andinterests when they are unwilling todo so (or are ignorant of their exis-tence), this weakness is not an argu-ment against enhanced disclosure; itjust indicates that enhanced disclo-sure is a partial solution. Disclosureis also an incomplete solution in thesense that it provides only thegrounds for disqualification; it doesnot guarantee that a judge willrecuse herself when the grounds aremade known.

3. Per se rules for campaign contributors

“The improper appear-ance created by money injudicial elections is oneof the most importantissues facing our judicialsystem today. A lineneeds to be drawn some-where to prevent a judgefrom hearing casesinvolving a person whohas made massive cam-paign contributions tobenefit the judge.”

—Theodore B. Olson, formerSolicitor General of the United

States.

To address the concern about judgeswho decline to recuse themselveswhen their campaign finances reason-ably call into question their impartial-ity, the ABA has recommendedmandatory disqualification of anyjudge who has accepted large contri-butions from a party appearing beforeher. Current recusal doctrine makes itextremely difficult to disqualify ajudge for having received contribu-tions from a litigant or her lawyer,12

even though there is ample evidenceto suggest that these contributionscreate not only the appearance of biasbut also actual bias in judicial decisionmaking.13 This problem is only goingto grow more acute in the comingyears, as judicial election campaignsbecome increasingly expensive.

“[Y]ou do not have todo away with electionsand or even fund-raisingto make a drasticimprovement in the qual-ity of justice in statecourts around the nation.All you need to do is lis-ten to Professor [VernonValentine] Palmer. If ajudge has taken moneyfrom a litigant or alawyer, Professor Palmersays, the judge has nobusiness ruling on thatperson’s case.”

—Adam Liptak, Looking Anew atCampaign Cash and Elected Judges,NEW YORK TIMES, Jan. 29, 2008.

Since 1999 (and with minorupdating in 2007 that is reflected inthe text below) the ABA’s ModelCode has included a provision pre-scribing disqualification of anelected judge when:

The judge knows or learns by means ofa timely motion that a party, a party’slawyer, or the law firm of a party’s lawyerhas within the previous [insert number]year[s] made aggregate contributions tothe judge’s campaign in an amount that[is greater than $[insert amount] for anindividual or $[insert amount] for anentity] [is reasonable and appropriatefor an individual or an entity].14

By setting a maximum threshold,the ABA’s per se rule eliminateslawyers’ incentive to curry favorthrough large contributions. By allow-ing contributions below that thresh-old, the ABA rule respects the factthat in many races the local bar will bein the best position to evaluate thecandidates’ merits—and if lawyers donot support candidates’ campaigns,special interests and self-funding willlikely dominate judicial campaignfinance.

However, the ABA provision has yetto be adopted or applied by any state.Indeed, the ABA position is not justignored; it is inverted in the prevailingjurisprudence, in which motions to

11. Judges do have a general ethical obligationto disclose possible grounds for their disqualifica-tion. See FLAMM, supra n. 6, § 19.10.2, at 579. TheABA Model Code stipulates that “[a] judge shoulddisclose on the record information that the judgebelieves the parties or their lawyers might con-sider relevant to the question of disqualification,even if the judge believes there is no real basis fordisqualification. Notice, however, that this stipula-tion appears only in the Commentary and isphrased in hortatory, not mandatory terms.Legally, litigants “cannot require an unwillingjudge to disclose facts and opinions.” John Leubs-dorf, Theories of Judging and Judicial Disqualification,62 N.Y.U. L. Rev. 237, 242 (1987).

12. See John Copeland Nagle, The Recusal Alterna-tive to Campaign Finance Legislation, 37 HARV. J. ONLEGIS. 69, 87 (2003) (citing numerous examples);see also Brief of Amicus Curiae Public Citizen inSupport of Reversal 1, Republican Party of Minn. v.White, 536 U.S. 765 (2002) (No. 01-521) (describ-ing Public Citizen’s unsuccessful challenge to

Texas’s system, “which allows large campaign con-tributions by lawyers and others with interestsbefore the courts but does not require recusal ofjudges when contributors appear before them”).Professor Nagle notes that academia has sidedsquarely with the ABA on this issue: “Indeed, thescholarly opinion is just as unanimous that a cam-paign contribution should require a judge torecuse as the courts are agreed that recusal isunnecessary.” Nagle, supra, at 88 (providing cita-tions to scholarly critiques).

13. See Flamm, supra n. 6. § 6.4.1, at ch. 12 (cit-ing recent empirical studies finding a significantcorrelation between campaign contributions andlitigation success rates).

14. ABA MODEL CODE, Canon 2, R. 2.11(A)(4).Note that the language cited was adopted in 2007and differs from its 1999 predecessor in that itincludes the phrase “or the law firm of a party’slawyer.” “Aggregate contributions” are meant toinclude both direct and indirect gifts made to acandidate. Id. at terminology.

disqualify a judge for campaign contri-butions “hardly ever succeed.”15

Motions to disqualify because a partyor attorney has provided other typesof campaign support, such as publicendorsement or participation on thejudge’s campaign staff, have met asimilar fate.16 Motions to disqualify forfailure to contribute money, time, orsupport to a judge’s election cam-paign have fared even worse.17 Onestate (Alabama) had a similar policy inplace at the time of the ABA’s revi-sion,18 but it appears to be rarelyapplied, as judges are unclear aboutthe statute’s legal status.19 Mississippiincludes campaign donations by coun-sel to the presiding judge as a factoravailable to parties moving forrecusal.20 However, the Mississippistatute falls well short of any sort ofthreshold standard, and, as a factor inthe recusal determination, donationsare not given any special weight.

Two problems with the ABA’s for-mulation of the rule may help toexplain why no states have adoptedit. First, in states with reasonable con-tribution limits, the potential for realor apparent corruption is largelyaddressed by the limits, which noindividual may legally exceed. Underthose circumstances, the ABA ruleadds little to the campaign financeregime in protecting a judge’s impar-tiality. Those jurisdictions would bebetter served by a rule that triggersdisqualification after receipt ofaggregate contributions of a certainamount not from a single donor, butcollectively from all donors associ-ated with a party to the litigation(such as corporate officers or man-agement-level employees) or withcounsel (such as law firm partnerswho have given in their individualcapacity). This modification of therule would also augment its efficacyin jurisdictions that lack reasonablecontribution limits.21 Concededly,precise line-drawing in terms of thescope and breadth of language per-taining to contribution aggregationis difficult, and preferences will varybased on many factors includingjurisdiction. In that regard, the sug-gested language below is offered forconsideration both in itself, and as a

potential point of departure. Second, the mandatory disqualifi-

cation required by the ABA ruleinvites gamesmanship that coulddefeat its purpose. If the contributionthreshold were set at a reasonablelevel, parties or lawyers could disqual-ify an unfavorable judge by makingcontributions (or aggregate contribu-tions) above that amount to her cam-paign committee. To prevent suchgaming of the system, any party whoseopposition (or counsel for the oppo-sition) contributed to the judgeshould be permitted to waive disqual-ification. A waiver is preferable torequiring a motion for disqualifica-tion because it keeps the onus on thecourt to disclose campaign financeinformation.22 Thus, the ABA rulewould be improved, and perhapsmore likely to be adopted, if it were torequire disqualification when:

the judge knows or learns by means of atimely motion that a party, a party’slawyer, or the officers, partners, or othermanagement-level employees of thatparty or of the law firm of the party’slawyer, has within the previous [ ] year[s] made aggregate contributionsto the judge’s campaign in an amountthat is greater than [$ ] for an individualor [$ ] for an entity. Disqualificationunder this section may be waived by any

party, provided that the party, the party’slawyer, or the officers, partners, or othermanagement-level employees of thatparty or of the law firm of the party’slawyer, have not made such contributions.

4. Independent adjudication of disqualification motions

“The uproar over con-flicts of interest at theWest Virginia SupremeCourt calls into questionthe practice of givingjudges the final say intheir recusals — evenwhen they’re faced withdemands to step down. . .‘There’s a lot not to likein leaving it up to theconscience of the individ-ual judge,’ said DeborahRhode, director of theCenter for Ethics at Stan-ford University’s lawschool.”

—The Associated Press,Massey-Maynard photos highlightjudicial recusal rule, The Herald-

Dispatch, January 27, 2008


arguing that disqualification in these instancesshould be automatic).

19. See Val Walton, Suit Claims Governor, AG NotEnforcing Campaign Law, Birmingham News, Aug. 2,2006, at 2B; see also Finley v. Patterson, 705 So. 2d834, 835 n.1 (Ala. 1997) (Cook, J., concurring)(describing the enforcement of Ala. Code § 12-24-2 as being “in legal limbo” because it was not pre-cleared under the Voting Rights Act); Brackin v.Trimmier Law Firm, 897 So. 2d 207, 230-34 (Ala.2004) (Brown, J., statement of nonrecusal) (stat-ing, “I am not aware of any opinions in which thisCourt has resolved the issue of the enforceability of§§ 12-24-1 and -2,” and refusing to recuse despitecontributions of more than $50,000 from an amicuscuriae PAC affiliated with one of the parties).

20. Mississippi has added a provision to its Codeof Judicial Conduct indicating that “[a] party mayfile a motion to recuse a judge based on the factthat an opposing party or counsel of record for thatparty is a major donor to the election campaign ofsuch judge” and stipulating that such motions willbe evaluated like any other recusal motion. MISS.CODE OF JUDICIAL CODUCT Canon 3E(2) (2002). Asif to clarify how dramatically this provision fallsshort of the ABA’s Canon 2, R. 2.11(A)(4), the offi-cial commentary notes that “[t]his provision doesnot appear in the ABA Model Code of JudicialConduct.” Id. Canon 3E(2) cmt.

21. In the Illinois race for Supreme Court atissue in Avery v. State Farm Mutual Insurance Com-pany , for example, State Farm made no contribu-tions to Karmeier, but individuals and entitiesclosely associated with it contributed more than$1 million to his campaign.

15. Nagle, supra n. 12; see also Brief of AmicusCuriae Public Citizen in Support of Reversal 1,Republican Party of Minn. v. White, supra n. 12.

Courts have been more sympathetic to disquali-fication motions when the campaign contributionat issue is particularly large, particularly close intime to the proceeding, or supplemented by addi-tional campaign activity. See, e.g., MacKenzie v.Super Kids Bargain Store, Inc., 565 So.2d 1332,1338 n.5 (Fla. 1990) (“Although a motion for dis-qualification based solely upon a legal campaigncontribution is not legally sufficient, it may well bethat such a contribution, in conjunction with someadditional factor, would constitute legally sufficientgrounds for disqualification upon motion.”);Pierce v. Pierce, 39 P.3d 791, 798 (Okla. 2001)(indicating that the size, timing, and manner ofjudicial campaign contributions may be relevant tothe disqualification determination).

16. See FLAMM, supra n. 6, § 6.4.3, at 191-94.17. See id. § 6.5, at 194-96. Some courts have

denied disqualification when the moving party orher counsel did not merely provide political sup-port to the judge’s opponent, but in fact was theopponent. Id. § 6.5, at 195-96.

18. Ala. Code § 12-24-2(c) (Supp. 2000). Cf.Petition for a Writ of Certiorari 24, Jones v. Burn-side, 127 S. Ct. 576 (2006) (No. 06-53) (identify-ing Alabama as the only state with a similarprovision to the ABA’s Canon 2, R. 2.11(A)(4);Peter A. Joy, A Professionalism Creed for Judges: Lead-ing by Example, 52 S. C. L. REV. 667, 675 & n.28(2001) (identifying Alabama as the only state thatclearly requires elected judges to recuse or be dis-qualified when faced with major contributors and

The fact that judges in many jurisdic-tions decide on their own recusalchallenges, with little to no prospect

of immediate review, is one of themost heavily criticized features ofUnited States disqualification law—and for good reason. Recusalmotions are not like other proce-dural motions. They challenge thefundamental legitimacy of the adju-dication. They also challenge thejudge in a very personal manner:they speculate on her interests andbiases; they may imply unattractivethings about her. Understanding thistension, Texas and several otherstates require that motions for dis-qualification be independently adju-dicated. Texas Rules of CivilProcedure require that when a judgeis presented with a motion for dis-qualification, the judge may chooseone of two options before proceed-ing further in the trial: the judgemay recuse herself, or the judge mayrequest that the presiding judgeassign another judge to hear andrule on the motion.23

In the face of mounting contro-versy surrounding its recusal laws, theWest Virginia legislature is consider-ing a different approach to independ-ent adjudication of recusal motions.24

Lawmakers there have proposed a res-olution that would amend the state’sconstitution and create a judicialrecusal commission. The commissionwould be composed of acting orretired judges appointed by the gover-nor, upon advice of the state senate, toserve six-year terms. Parties seekingthe recusal of a judge would simplysubmit an application to the commis-sion to have that judge removed, uponwhich the commission would thenissue a binding decision on the matter.

Allowing judges to decide on theirown recusal motions is in tension notonly with the guarantee of a neutral

decision maker, but also with theexplicit commitment to objectivity inthis arena. “Since the questionwhether a judge’s impartiality ‘mightreasonably be questioned’ is a‘purely objective’ standard”—a stan-dard that virtually every state hasadopted—“it would seem to followlogically that the judge whose impar-tiality is being challenged should nothave the final word on the questionwhether his or her recusal is ‘neces-sary’ or required.”25

Against these arguments, severalprudential objections are typicallyoffered in favor of judges makingtheir own recusal decisions. As onecommentator sets out the core claims:

The primary benefit of the individualdetermination model is that the personwith the best knowledge of the facts isthe person who resolves whether thecircumstances support recusal. Individ-ual determination may also reduce thenumber of recusal “fishing expeditions”because parties will be reluctant toapproach an individual [judge] withweak evidentiary support for a disquali-fication motion. The single-judge pro-cedure also enhances judicial efficiencybecause it avoids prolonged fact-findinghearings before recusal decisions.26

None of these critiques is whollymisguided, but we do not find themcompelling. The challenged judgemay have the best knowledge of thefacts, but the very biases or conflictsof interest that prompted the chal-lenge in the first place may preventher from fairly evaluating the importof those facts. In addition, the judgemay fear that granting a disqualifica-tion motion will send the signal thatshe is biased, even if she is not, andthat it will raise questions about whyshe failed to recuse herself sua sponte.“Fishing expeditions” should bedeterred by the fact that the third-party decision makers will be judgesthemselves, and so will have a profes-sional and personal interest in ensur-ing that such expeditions do notflourish.27 (Sanctions might also beused for frivolous challenges.) Andwhile independent adjudication ofrecusal motions does raise efficiencycosts, those costs should not be sub-stantial if decisions are based on writ-ten affidavits and oral argument,


22. Canon 2, R.2.11(C) ABA Model Code ofJudicial Conduct appears to permit waiver whenboth parties agree to it. But requiring mutual con-sent perpetuates the potential for gamesmanship.

23. TEX. R. CIV. PRO. 18a(c) (2007).24. See Maynard-Massey Flap Triggers Recusal

Legislation, The Intelligencer / Wheeling News-Register, Feb. 1, 2008, http://www.theintelli-gencer.net/page/content.detail/id/38554.html?isap=1&nav=535.

25. Abimbola Olowofoyeku, Regulating SupremeCourt Recusals, 2006 SING J. LEGAL STUD. 60, 69(internal citations and quotations omitted). Recallthat this objective standard is the centerpiece ofmodern American disqualification practice andhas been codified into law nearly everywhere.

“By not recusing himselffrom the appeal of a $50million jury verdict againstA.T. Massey Coal Company("Massey")—after hereceived over $3 million inpost-verdict, pre-appealcampaign support fromMassey's CEO—West Virginia Supreme CourtJustice Brent Benjamincreated an appearance ofbias that would diminishthe integrity of the judicialprocess in the eyes of anyreasonable person."

“A holding by the Courtthat the Due ProcessClause required JusticeBenjamin's recusal wouldprovide crucial guidanceto elected judges and pre-serve public confidence injudicial elections. Suchconfidence is of particularvalue to those engaged incommerce, who rely oneven-handed justice tomake informed financialand investment decisions."

—Brief amicus curiae, Commit-tee for Economic Development, in

support of the petition filed with theU.S. Supreme Court in Caperton v.

A.T. Massey Coal Co., No. 08-22

26. R. Matthew Pearson, Note, Duck DuckRecuse? Foreign Common Law Guidance & ImprovingRecusal of Supreme Court Justices, 62 WASH. & LEE L.REV. 1799, 1833-34 (2005), at 1833 (internal cita-tions omitted).

27. Indeed, one might argue that a challengedjudge’s colleagues are not independent enough torule on her disqualification motion, on account ofthe collegiality and reciprocity pressures that theywill likely face in such situations. One might there-fore prefer the use of outside arbiters instead. Wefind this idea intriguing and not necessarily out-landish, but we do not address it here because ofthe deep practical and possibly constitutional con-cerns that any such scheme would raise.


rather than full-blown adversarialhearings. The increased proceduralintegrity and public trust fostered byan independent decision maker maybe well worth the price.

5. Transparent and reasoned decision makingJudicial disqualification in manyjurisdictions is something of a blackbox: there is no systematic record ofhow disqualification motions aredecided or on what grounds. Thefailure of many judges to explaintheir recusal decisions, and the lackof a policy forcing them do so,offends not only a basic tenet of legalprocess, but also a basic tenet of lib-eral democracy—that officials mustgive public reasons for their actionsin order for those actions to be legit-imate.28 The lack of public reason-giving also creates less abstractproblems: it stymies and distorts thedevelopment of precedent, itdeprives appellate courts of materi-als for review, and it allows judges toavoid conscious grappling with thecharges made against them. To rem-edy these problems, all judges whorule on a disqualification motionshould be required to explain theirdecision in writing or on the record,even if only briefly.

Most states require that a rulingon a motion for disqualification beexecuted in writing, either througha written order or a bench decisionon the record.29 However, in prac-tice, this procedural requirementdoes not guarantee any discussionwhatsoever of the reasons for dis-qualification. California has supple-mented this process somewhat byrequiring that certain informationbe disclosed to the parties inregards to a disqualification hear-ing.30 Specifically, parties are enti-tled to receive a copy of any writtenanswer a judge may file regardingdisqualification. Yet even measuressuch as these do not necessarilyenhance precedent or the materialsavailable for appellate review. Anysort of measure requiring judges toexplain the basis for their disqualifi-cation decisions would be prefer-able.

6. De novo review on interlocutory appealThe perfunctory abuse-of-discretionstandard of review applied to recusaldecisions in nearly every jurisdictionhas drawn its fair share of critics.31

Making appellate review more search-ing would be less important if theother reforms on this list wereadopted, but it would still provide avaluable safeguard against partiality. Itwould also provide a measure of disci-pline for lower court judges, who

would face a higher risk of disqualifi-cation—and the attendant profes-sional embarrassment—for erroneousrecusal decisions. Evidence from theSeventh Circuit, the only federalappeals court to review recusal deter-minations de novo, might shed somelight on why such a standard is desir-able.

In addition to adopting a moremeaningful standard of appellatereview, courts could improve theirprocedures for appeal. While thestandard mechanisms for filing anappeal—interlocutory orders,motions for reconsideration, andpost-trial petitions—all have a role toplay, interlocutory orders offer liti-gants the earliest opportunity forrelief. In jurisdictions in which inde-pendent adjudication of the recusalmotion is not implemented at thetrial court level, encouraging orrequiring appellate courts to acceptinterlocutory orders in a timely man-ner (which rarely happens at present)may provide a second-best alternative.

7. Mechanisms for replacing disqualified appellate judgesIn states that do not designate a sub-stitute for a disqualified appellatejudge recusal of a judge can result ineven splits. The potential for such

even splits at the appellate level canraise serious problems of gamesman-ship, and it undermines the prece-dential value of the resultingdecisions. It is therefore importantthat regardless of which recusal poli-cies they adopt, courts have in placemechanisms for efficiently replacinga disqualified judge.32

8. Expanded commentary in the CanonsExpanding the canon commentaryon recusal would be a classic “soft”

solution for regulating its practice.This reform would be of limitedvalue, both because of the commen-tary’s weak legal stature and becausethe discussion cannot cover all possi-ble situations. Nevertheless, it wouldbe relatively costless to do, and itwould promote adherence to higherethical standards by clarifying whenrecusal is advisable, if not strictly

28. See Amanda Frost, Keeping Up Appearences: AProcess Oriented Approach to Judicial Recusal, 53 U.KAN. L. REV. 531 560-63, 569-70, 588-90 (2005)(describing public reason-giving as a core tenet ofLegal Process theory and recommending itsincorporation into the practice of judicial disqual-ification).

29. See, e.g., COLO .R. CIV .PRO. 97 (2007)(requiring that “all other proceedings in [a] caseshall be suspended until a ruling is made” on thedisqualification motion (emphasis added)); COLO.R. CIV .PRO. 58 (2007) (explaining that all judg-ments, decrees, and orders must be entered inwriting).

30. CAL. CIV. PROC. CODE § 170.3(c)(3) (West2007).

31. See, e.g., Paul G. Lewis, Systemic Due Process:Procedural Concepts and the Problem of Recusal, 38 U.KAN. L. REV. 381, 407 (1990) (critiquing the abuseof discretion standard for not providing meaning-ful protection against judicial misconduct); Jef-frey W. Stempel, Rehnquist, Recusal, and Reform, 53BROOK L. REV. 589, 661-62 (1987) (same).

32. This problem has already received a greatdeal of attention at the federal level. See, e.g.,Cheney v. United States Dist. Court, 541 U.S. 913,915-16 (2004) (mem. of Scalia, J.); Laird v. Tatum,409 U.S. 824, 837-38 (1972) (mem. of Rehnquist,J.); Ryan Black & Lee Epstein, Recusals and the“Problem” of an Equally Divided Supreme Court, 7 J.APP. PRAC. & PROCESS 75 (2005); Note, Disqualifica-tion of Judges and Justices in the Federal Courts, 86HARV. L. REV. 736, 748-50 (1973); Pearson, supran. 26, at 1806, 1836-37.

It is important that courts

have in place mechanisms

for efficiently replacing

a disqualified judge.


required. The commentary couldalso be expanded to provide moreexamples of situations meriting dis-qualification—for instance, represen-tative campaign statements thatmight reasonably be interpreted asindicating a commitment to a partic-ular outcome in certain types of pro-ceedings—which would make ittougher for judges to deny disqualifi-cation motions based on similarfacts.33

9. Judicial education Seminars for judges that enablethem to confront the standard cri-tiques of disqualification law mightprovide another soft solution forinvigorating its practice. Judgescould be instructed on the likelyunderuse and underenforcement ofdisqualification motions, the socialpsychological research into bias, theimportance of avoiding the appear-ance of partiality, and so forth. Theseseminars might also review potentialreforms to recusal doctrines andcourt rules. Beyond their specificteachings, simply having such semi-nars might help to foster a legal cul-ture in which there is deeperawareness of disqualification law and

its current flawed state.

An external solution: Recusal advisory bodiesOutside observers need not sit idlyby as judges consider the previousreforms. In some states in whichthere is heightened concern aboutthe fallout from White and otherpressures to abandon ethical stan-dards, bar associations or othergroups of volunteers have createdcommittees to monitor judicial cam-

paign conduct.34 These groups serveboth as a resource for candidateswho want to take the high road, byoffering them cover for the refusal tolower their standards, and as asource of corrective public educa-tion when advertising in judicialcampaigns (by candidates, politicalparties, or interest groups) is false ormisleading. The most effective com-mittees often have no official status;they work by drawing attention toproblems and keeping participantsin the electoral process accountablefor their behavior.

A similar model might be followedwith respect to recusal. Advisory bod-ies could identify best practices andencourage judges to set high stan-dards for themselves. Judges could beencouraged to seek guidance fromthe advisory body when faced with dif-ficult issues of recusal. A judge accept-ing such advice could expect a publicdefense if a disgruntled party criti-cized a decision not to recuse. In con-trast, the advisory body could disclosewhen a judge has ignored advicefavoring disqualification. The public-ity would create pressure for thejudges to follow recusal recommenda-tions or to specify clear reasons fortheir decision to sit on a case.

ConclusionWe have by no means catalogued allof the possible changes to recusaldoctrine and practice that couldenhance the accountability of judgesand protect their independence. Buteven the few proposals briefly out-lined here could compensate forsome of the evident weaknesses incurrent disqualification standardsand help to protect the real andapparent impartiality of the courts.The challenge for elected judges,whose campaign supporters may wellwant them to rule on cases fromwhich they should be disqualified, willbe to overcome pressures to maintainthe status quo. The rising attacks onthe judiciary may provide the neededincentives for recusal reform.

We acknowledge that, althoughrecusal reform is badly needed, it isless than a perfect solution to theproblems arising in the aftermath ofWhite. Recusal is an incomplete safe-guard of judicial fairness and impar-tiality because it is an individualized,case-specific remedy and so protectsonly against harms to particular liti-gants. Front-end, systemic protec-tions, such as non-elective judicialselection methods or canons pro-hibiting conduct that underminesreal and perceived judicial impartial-ity, are ultimately preferable. But thefact is that as those protections arebeing scaled back or stricken, theback-end disqualification of judgeswho appear to be biased is becomingall the more important as a protec-tion of last resort. Invigoratingrecusal would help courts currentlyunder siege to seize the high groundand recover the respect of a disen-chanted public. g

JAMES SAMPLE is counsel in the Democracy Program ofthe Brennan Center for Justice at NYUSchool of Law. ([email protected])

MICHAEL YOUNG is a 2008 grauate of NYU School ofLaw.

Invigorating recusal

would help courts to seize

the high ground and recover

public respect.

33. In revising the Model Code, the ABAappears to have made some minor additions tothe commentary on its disqualification provision,but much more could still be done (of note arecomments two and six which clarify that the dis-qualification rules apply regardless of whether amotion to disqualify has been filed and elaborateon the meaning of ‘economic interest,’ respec-tively).

34. See Chief Justice Joseph E. Lambert, Con-testable Judicial Elections: Maintaining Respectabilityin the Post-White Era, 94 KY. L.J. 1, 13 (2005) (sum-marizing the work of these committees inAlabama, Florida, Kentucky, and Ohio); see alsoThe Way Forward: Lessons from the National Sympo-sium on Judicial Campaign Conduct and the FirstAmendment, 35 IND. L. REV. 649, 655 (2002) (rec-ommending the creation of official and unofficialcampaign conduct committees “to help assureappropriate campaign conduct”).

invigorating judicial disqualification

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