"Few actions jeopardize public trust in the judicial process more than a judge’s failure to recuse in a case brought by or against a substantial contributor."
- American Bar Association
Under the American Bar Association Model Code, judges are instructed to step aside not just when they are actually biased, but whenever “the judge’s impartiality might reasonably be questioned.” Some form of this rule exists in nearly every state.
Stronger recusal rules are needed today, as unprecedented levels of campaign cash are being spent in state judicial elections by parties who appear in court. The U.S. Supreme Court declared, in Caperton v. Massey, that campaign spending can damage a litigant's right to a fair trial. The court also has declared repeatedly that states may establish recusal rules tougher than required by the Constitution.
Polls show 85 to 90 percent of the public believe that judges should not hear cases involving major campaign supporters, and three in four Americans believe campaign assistance might affect a judge’s courtroom decisions. To advance fair and impartial justice, bar leaders and judges are working to write stronger recusal rules.
The threat of special-interest spending to the integrity of elected state courts was escalated by the Supreme Court's Citizens United ruling in 2010. The following year, the American Bar Association completed a four-year process and approved a resolution calling on states to adopt new, strong recusal rules.
Justice at Stake Executive Director Bert Brandenburg called for more rigorous recusal rules in a Chicago Tribune op-ed in September 2011. He wrote:
“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.”
Justice at Stake declared in November 2011 a need "for greater public transparency in deciding when a judge should, or should not, step down from a case," in connection with the Jerry Sandusky case in a Pennsylvania court. "A key reason for judicial recusal is to protect public trust in the courts," Justice at Stake said. "This requires a clear public record of any associations and actions that might reasonably cast doubt on a judge’s impartiality."