Making Judicial Recusal More Rigorous

Abstract

The right to an impartial arbiter is the bedrock of due process. Yet litigants in most state courts face judges subject to election and reelection - and therefore to majoritarian political pressures that would appear to undermine the judges' impartiality. This tension has existed for as long as judges have been elected (and, to some extent, for as long as they have been appointed, in which case campaigns often take a less public but equally politicized form).

In recent years, however, this tension has become more acute. Today, state courts around the country increasingly resemble - and are increasingly perceived to resemble - interest group battlegrounds in which judges represent particular constituencies in addition to, or even instead of, the rule of law. Two key developments are driving this transformation: the role of money in judicial elections is growing while the canons of conduct are shrinking. These trends are creating dramatic new threats to judicial impartiality and due process. Taking our cue from Justice Anthony Kennedy's concurrence in Republican Party of Minnesota v. White, we explore in this article a possible solution: making judicial recusal rules more rigorous.

Keywords: recusal, disqualification, due process, judicial elections, state courts, Republican Party of Minnesota v. White