Gavel Grab

ABA Votes to Adopt Judicial Recusal Guidelines

In a landmark vote, the American Bar Association today approved a resolution calling on states to adopt new rules for judicial disqualification. The recommendations had been four years in the writing.

The vote at the House of Delegates session of the annual ABA meeting in Toronto responded to what the ABA views as the increasing clout of campaign cash in judicial politics, according to a Thomson Reuters News & Insight article.

“No one should be a judge in his or her own case,” William Weisenberg, a member of the ABA committee that drafted the resolution, said about it.

Adam Skaggs of the Brennan Center for Justice said the resolution calls for rules that provide for prompt and meaningful review when a challenged judge denies a recusal request, and also requiring recusal when campaign spending raises reasonable questions about a judge’s impartiality.

“Reforming these procedures is always a slow process, but to have an organization as significant as the ABA underlining the importance of these changes can only spur courts to take a close look at reform,” said Skaggs.

The Brennan Center had endorsed the ABA resolution. It also was endorsed by the ABA’s Judicial Division. According to G. Michael Witte, chair of the judicial division, judges had been concerned that an earlier version of a report accompanying the guidelines went too far in prescribing state responses; but  judges considered the language in the current resolution broad enough so that states could write their own rules.

The resolution comes at a time of soaring special interest spending in judicial elections and takes into account recent Supreme Court rulings in Caperton v. Massey and Citizens United v. Federal Election Commission. In the decade that ended in 2009, fundraising in state supreme court contests more than doubled from the prior decade, Thomson Reuters reported in citing data from Justice at Stake.

The ABA resolution urges states to establish clear procedures for dealing with judicial disqualification and for greater transparency about judges who receive campaign cash and lawyers and litigants who donate it.

A version of the ABA resolution was yanked from the ABA’s meeting calendar in Atlanta earlier this year when there weren’t enough votes in hand to pass it.

In a letter to ABA President Stephen Zack at that time (see Gavel Grab), Justice at Stake and the Brennan Center supported efforts for state recusal reform and added,  “We consider ourselves friends of impartial courts, and do not believe that robust recusal standards in any way encroach on the independence of the judicial branch.”

In June, Justice at Stake and the Brennan Center reported that two years after the Caperton ruling on special interest cash in the courtroom, only nine states had adopted promising new disqualification rules, and the majority of state courts had failed to adopt any reforms.

An ABA Journal article about today’s vote was entitled, “ABA Calls for More Effective Rules on Judicial Disqualifications.”

The Brennan Center today issued a revised edition of its study, “Promoting Fair and Impartial Courts through Recusal Reform,” which can help state courts respond to the ABA’s resolution. The Brennan Center and the ABA are JAS partner groups.

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