Brennan Center Urges Recusal Reforms

The Brennan Center for Justice at NYU issued a report this month recommending reforms in recusal policies around the country. James Sample, David Pozen & and Michael Young, Fair Courts: Setting Recusal Standards (2008). See a press release here.

The authors say that it's more important now because of increasingly contentious elections, with judges accepting big contributions from industries whose disputes they may preside over (whether it's insurance companies, plaintiffs' lawyers, or real estate developers).

Their ten recommendations:

1. Peremptory disqualification. Some states let parties decline a judge assignment, just as they can excuse a juror.
2. Enhanced disclosure. Judges should disclose campaign statements and campaign contributions that might be seen as affecting their impartiality.
3. Per se disqualification for campaign contributors. The ABA also recommends disqualifying a judge from judging a party that has contributed above a certain amount to the campaign.
4. Independent adjudication of disqualification motions.
5. Transparent and reasoned decision-making. (Don't just say: "Nope, I won't recuse myself." Explain it.)
6. De novo review on interlocutory appeal.
7. Mechanisms for replacing disqualified judges.
8. Expanded commentary in the canons.
9. Judicial education.
10. Recusal advisory bodies.

Thanks: Tony Mauro, A New Call for Tougher Recusal Standards, Legal Times, April 22, 2008.