Recusal Standards for Judges
Finding ways to ensure the competence and integrity of the judicial system is a research and advocacy priority at Chicago Appleseed. We consider ways to advocate for improvement through our court-watching projects, the research and support we give to the Judicial Performance Commission, and in our regular reports on the functioning of Cook County’s courts. In the last year, we have been looking with great interest at recusal standards.
Chicago Appleseed has previously proposed a public database—easily accessed via the internet—of donors to judicial campaigns as a means of facilitating recusal or disqualification of judges where appropriate. We believe that if attorneys and litigants have easy access to verified public information about campaign donations to judges, attorneys will be able to more effectively use the statutorily-provided Motion for Substitution of Judge as of Right when they believe campaign donations have arguably created a conflict. However, the suggested database is a modest proposal, which only partly addresses concerns of judicial independence and impartiality in a system of elected judges.
In February of this year, the Brennan Center released a report “Fair Courts: Setting Recusal Standards” that closely examines the issue and offers 10 proposals “to strengthen the fairness and legitimacy of state recusal systems.” The Brennan Center Report first proposes a peremptory disqualification of judge, much like the statutory substitution of judge as of right we have in Illinois. The second of the Report’s proposals: enhanced disclosure of campaign contributions is similar to the Chicago Appleseed proposal mentioned above. The remaining eight recommendations present a reasoned approach to improving judicial impartiality, reforming our courts, and increasing public confidence in the courts and Chicago Appleseed generally supports the adoption of the proposed recusal standards, available at the Brennan Center website.
At the American Bar Association annual meeting in Toronto this week, members will vote on Resolution 107, which calls for individual states to set up clear procedures for handling judicial disqualifications. Two prominent features in Resolution 107 (.pdf) are a call for more transparent accounting of judges who receive campaign donations and lawyers who give them and a system in which a judge is not the last arbiter in whether he or she should be recused.
Public confidence in the judiciary arises from judicial excellence, judicial independence and judicial impartiality. Ensuring impartiality and independence in a jurisdiction with elected judges can be problematic, particularly given increased media coverage of judicial elections in the wake of important court decisions concerning campaign financing. The appearance of campaign donors as litigants and attorneys in the courtrooms of elected judges raises significant questions about the impartiality of those judges and the general integrity of the bench. At Chicago Appleseed, we believe that transparency in campaign contributions and consistency in recusal decisions will go a long way toward raising confidence in judicial independence and impartiality.