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![handle is hein.brennan/profimcrr0001 and id is 1 raw text is:
BRENNAN
CENTER
FOR JUSTICE
Promoting Fair and Impartial Courts through Recusal Reform
Adam Skaggs and Andrew Silver'
Revised August 2011
[N]ow as never before, reinvigorating recusal is truly necessary to preserve
the court system that Chief Justice Rehnquist called the crown jewel of our
American experiment.
The Honorable Thomas R. Phillips
Retired Chief Justice, Supreme Court of Texas2
Reforming judicial disqualification practice in the states is necessary to combat mounting
threats to public confidence in the judiciary. In particular, recusal reform is needed to defeat
the growing perception that judges' decisions in the courtroom are influenced by partisan
political concerns and - in the 39 states that elect judges -judicial campaign spending.
State and national surveys have repeatedly shown that large, bipartisan majorities are
extremely wary of the role that money plays in judicial elections and believe that campaign
funding support buys favorable legal outcomes.3
In 2009, the U.S. Supreme Court recognized the corrosive effect that outsized judicial
campaign spending can have on public perceptions of judicial legitimacy. In Caperton v. A.T.
Massey Coal Co.,4 the Court concluded that it violated the Constitution's guarantee of a fair,
impartial tribunal when a judge who had benefitted from more than $3 million in campaign
spending by the CEO of the Massey coal company - more than the total amount spent by
all the judge's other supporters, and by his own campaign committee - cast the tie-breaking
vote to throw out a $50 million damages award Massey was appealing. Recognizing that
there was a senious, objective risk of actual bias when the judge ruled on his principal
benefactor's case, the Supreme Court disqualified the judge. At the same time, the Court
emphasized that states would be well served to adopt recusal rules more rigorous than the
Constitution requires.'
Two years after Caperton, although a handful of states have adopted promising new rules, the
majority of state courts have failed to adopt any reforms that respond to the threats
identified by the U.S. Supreme Court.
The issue is, if anything, more relevant today than it was two years ago. Judicial spending
continues to spiral out of control. Such spending in the decade between 2000 and 2009
more than doubled what was seen in the 1990s.7 In 2010, runaway spending in judicial
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