Gavel Grab

JAS Op-Ed Urges More Robust Judicial Recusal Rules

In a Chicago Tribune op-ed today, JAS Executive Director Bert Brandenburg decried “the money revolution” in state Supreme Court races and called for more rigorous rules on judicial recusal to protect fair and impartial courts.

In August, the American Bar Association approved a resolution calling on states to adopt new rules for judicial disqualification (see Gavel Grab).  The ABA resolution responded in part to a 2009 U.S. Supreme Court ruling in Caperton v. Massey, which challenged states to adopt tougher restrictions for when judges could hear cases involving campaign supporters. Brandenburg wrote:

“If there is reasonable doubt that a judge can be impartial, he or she should step aside. This summer, the American Bar Association urged states to update their recusal rules, specifically to address campaign benefactors. The ABA also called for an independent review of recusal requests, so that judges aren’t the sole decider of whether they should step aside. Michigan adopted such a rule a couple of years ago. But since Caperton, most states have not acted.”

Brandenburg’s op-ed discussed the fractious Wisconsin Supreme Court, where tensions recently boiled over into a physical altercation between two justices. He contended that big-spending judicial elections were a partial factor:

“Part of the tension is a spillover from the high stakes and soaring costs of judicial elections, fueled by dueling businesses and trial lawyers. The amount of money raised nationally by high-court candidates more than doubled in the last decade, to $206.9 million during 2000-09 from $83.3 million in the 1990s.”

Brandenburg reasoned that when more judges become “professional fundraisers,” and solicit campaign money from parties who may later come before them, there is a price. “Surveys show three Americans in four believe campaign cash affects courtroom decisions,” he wrote. In these circumstances, he maintained that judges face a new obligation:

“If judges are going to accept the spoils of big money politics, they must accept a new duty: deciding when to step aside to assure justice. After all, judges are supposed to be accountable to the Constitution, not special-interest supporters. They take an oath to deliver due process under the law without regard to who voted for them or spent the most to help elect them.”

Brandenburg concluded:

“The explosion in big-money campaigns means judges have to work harder to ensure that they are not viewed as ordinary politicians. Indeed, if the public loses confidence that their courts can be fair and impartial, it will be hard to win back.”

The op-ed was headlined, “Are our justices bought and paid for?”

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