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.