The Recusal Remedy

With state judicial elections getting more costly and raucous, many organizations are voicing concern about how to preserve — or restore — the independence and integrity of state court systems. When judicial candidates accept campaign donations or make campaign pronouncements that might affect their impartiality in future cases, what can be done?

The Brennan Center for Justice has issued an important report that points to an answer that has not gotten enough attention: beefing up recusal standards, which now are notoriously weak. The report, titled "Fair Courts: Setting Recusal Standards," urges making it easier for parties, through recusal motions, to ensure that their cases are not heard by judges who might be beholden or biased toward one side or the other. The report also suggests automatic disqualification of judges from cases involving large campaign donors, and recommends ways of making the recusal process more transparent and subject to review.

"No judicial system should accept a process which leaves a litigant acting in good faith saddled with a judge whose fairness can be reasonably questioned," writes Baker Botts partner Thomas Phillips, formerly the chief justice of the Supreme Court of Texas, in a foreword to the report. So long as states are unwilling to make major changes in the way their judges are chosen, Phillips says, "improved recusal procedures are among the most promising incremental reforms."

Speaking of recusals, we've just updated "Recusal Report," our Web site that looks at recent recusal announcements by Supreme Court justices. And, given that the justices almost never reveal their reasons for recusing, the page offers possible explanations based on available information about justices' financial and family connections.