Vol. 97, No. 1

Perfecting the Judicial Peremptory Challenge: A New Approach Using Preliminary Data on California Judges in 2021

Sarah Park*
California Law, Judicial Decisionmaking, Trial, Trial Practice
Articles, Notes

Even the most carefully planned and genius strategies are pointless without an assumption of fairness: chess depends on a fair arbiter, soccer depends on a fair referee, and litigation depends on a fair judge. Just as arbiters and referees are frequently criticized for questionable decisions, judges also deal with accusations that bias has impermissibly clouded their judgment. To protect litigants, the California Legislature presented a solution—the California Code of Civil Procedure section 170.6, a statute arming litigants with the option to replace their assigned judge if they declare that judge biased. This judicial peremptory challenge asks for no evidence of bias, further frustrating the disagreement between proponents who claim that this right will trigger a chain reaction to increased public confidence and decreased discrimination against litigants, and opponents who conversely warn that it will open a Pandora’s box of abuse, intimidation, and discrimination against innocent judges. The difficulty of constraining various harmful human tendencies is the problem of judicial peremptory challenges writ large.

It appears that much of this policy debate about judicial peremptory disqualification is informed by theory rather than empirical data. The study conducted by this Note reveals that, at least in 2021, (1) peremptory challenges do not occur often but abuse still occurs among the few times they are asserted, and (2) timing and form rules are weak procedural obstacles. My proposal acknowledges that judges are sometimes not the epitome of neutrality but takes issue with litigants who may inflict damage on undeserving judges and the adjudication generally. Instead of the current “no-questions-asked” regime, the recommended procedure is the following: after litigants receive judicial analytics, they can file the disqualification motion with an independent judge who will review both the motion and the challenged judge’s evidentiary explanation for factual and legal sufficiency. Admittedly, like its federal counterpart, this is not peremptory per se, but it is preferrable as it will perfect the peremptory challenge and diminish the risk of abuse even more than the current model.

INTRODUCTION

There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals.

—Justice Cardozo¹

The Lady Justice sculptures that adorn the United States Supreme Court building serve as a reminder of the high standards to which we hold judges: her blindfold and scales represent unwavering impartiality.² But juxtaposing Lady Justice, a godlike figure from ancient mythology,³ with judges, human beings vulnerable to inevitable fallibility,⁴ begs the question of whether these standards are unattainable ideals. What happens when judges cannot wear the blindfold and hold the scales yet still wield the sword symbolizing power?⁵ The California Legislature responded to this reality by enacting California Code of Civil Procedure section 170.6 (“Section 170.6”) which grants judicial peremptory⁶ challenges, or the power to automatically disqualify a judge for bias even without any evidence of such bias, to litigants.⁷ Given that plaintiffs and defendants in the United States bear the burden of proof to succeed in their claims and defenses respectively, the significance of this exceptional legal right is apparent. But the California Legislature was not blind to the potential for this statute to act as a double-edged sword:⁸ litigants and their attorneys are naturally inclined to exploit this power to “shop” for a judge that is likely to favor their cause.⁹ This cost-benefit analysis (“judge shopping,” which seems contradictory to the very essence of judging, weighed against public confidence in the judiciary) still plagues practitioners, legal academics, and judges today, decades after Section 170.6 was added to the California Code of Civil Procedure.

Although peremptory challenges are more commonly associated with jurors rather than judges,¹⁰ the ability to change the assigned judge cannot be understated. The jury has indisputable influence over a case’s outcome by “mak[ing] findings of fact and render[ing] a verdict for [] trial.”¹¹ Indeed, the foundational right to a judgment by one’s peers in the community dates back to the Magna Carta.¹² Nonetheless, the judge still decides questions of law¹³ and thus arguably holds equal, if not more, influence than the jury.¹⁴ This is especially so given all cases have a judge but not all of them have a jury.¹⁵ Moreover, a majority of cases do not proceed to trial: a judge’s ruling on a summary judgment motion has a conclusory effect akin to the end of trial.¹⁶ Even if a case reaches trial, a successful motion for judgment as a matter of law¹⁷ or a motion for new trial¹⁸ can subvert the jury’s verdict.

Considering judges’ unparalleled authority over litigants’ fate, notwithstanding the jury’s role, it is no surprise that judges must not “manifest bias . . . including but not limited to bias . . . based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . . .”¹⁹ Judicial independence not only has a rich history predating Enlightenment philosophy,²⁰ but is also at the core of national identity in the United States: former President Adams, one of the Founding Fathers, wrote about the right to trial by “judges as free, impartial, and independent as the lot of humanity will admit” in the original Massachusetts Constitution.²¹ Judges are supposed to represent the best of human nature, maintaining superior morals and ethics. This image erodes when judges rule with regard to “which side is popular” and “who is ‘favored.’ ”²² Impartiality in the courts is not a mere exercise in political correctness but a vital component of a fair, just, and democratic society rid of corruption. Once the public no longer trusts judges to treat them equally with their adversary, a domino effect to anarchy may ensue whereby people will stop respecting and therefore complying with orders from the judiciary and government at large. However, judicial discretion is as crucial to the proper functioning of the legal system as judicial impartiality because indeterminate laws require judges to “consider practical consequences and the overall context of a matter.”²³ Alexander Hamilton, one of the Framers of the U.S. Constitution, distinguished between the “guided exercise of discretion” and the “imposition of personal will and preference” by highlighting the “importance of courageous judges to the preservation of individual liberty and to the amelioration of oppressive legislation.”²⁴

Ideally, litigants would always use Section 170.6 in good faith to defend themselves from judicial bias. Unfortunately, courts confront the ironic truth that some litigants abuse this ability as an offensive maneuver instead. Litigants may take advantage of peremptory challenges to substitute their judge with one that has aligned interests—that is, a biased judge. Section 170.6 can accordingly exacerbate the very problem it was designed to minimize. Bias is a two-way street in which litigants can also discriminate against judges of a particular gender, race, or ethnicity, among other demographics. There was increased legislative movement toward eliminating peremptory juror challenges for this reason in 2021²⁵ and publicity on race-based discrimination in jury selection in 2022.²⁶ If attorneys can discriminate against potential jury members, they can discriminate against judges as well, and the legal field should brace for any future spillover on peremptory challenges to judges. In 2022, 60.1% of judges in California were male, and 61.4% of them were white.²⁷ Imagine the harm that would result if most of the disqualified judges were members of groups that have historically endured discrimination. The judiciary would subsequently lose the diversity of thought and experiences necessary to adequately understand and evaluate heterogeneous litigants from the United States, a country often referred to as a melting pot.

This Note illustrates the need to abandon the judicial peremptory challenge as it exists today and instead opt for a blend of other variations—specifically, the challenge should be less peremptory and more stringent. Preliminary empirical data in 2021 reveals that (1) peremptory challenges do not occur frequently but abuse still occurs among the few times they are asserted, and (2) timing and form rules are weak procedural obstacles. Although the challenge is not widely abused, a different model will decrease the incidences of abuse even further. In lieu of a conclusory allegation of bias that is instantaneously granted, the proposed disqualification approach allows the challenged judge to refute the allegation with evidentiary explanations. This will hopefully pull the reins on the litigants, however few, who make an unwarranted, illusory charge of bias against their judge in order to gain a tactical advantage.

This Note begins by providing a high-level overview of how peremptory challenges to judges are treated by federal courts and other state courts besides California. It also explores Section 170.6 in detail, particularly the statute’s legislative history and interplay with judicial rules and peremptory juror challenges. Next, it summarizes the current policy arguments both in favor and against peremptory disqualification of judges: points of contention include discrimination against judges and confidence in the judiciary, among others. It continues with an analysis of data collected from every order in 2021 in which a California superior court judge decided on a Section 170.6 motion, tracking for the number of filed motions, number of denied motions and why they were rejected, number of disqualified judges, and the disqualified judges’ political party. It then synthesizes the findings with judicial disciplinary actions due to bias in 2021, which informs the policy debate by revealing the concerns that actually come to fruition in practice, rather than in theory only, at least in the context of California for this time frame. It additionally explores the reasons behind challenging a judge using The Robing Room, a public forum. Afterwards, it discusses alternative disqualification procedures offered by some legal scholars before advocating a new approach. Finally, the Note ends with recommendations for future research.

I. MODERN LAW OF JUDICIAL PEREMPTORY DISQUALIFICATION

Section 170.6 is a relatively recent addition to judicial disqualification law²⁸—the decades since its enactment pale in comparison to the more than one thousand years people have spent developing legal justifications for disqualifying judges.²⁹ In the mid-eighteenth century, the thirteen American colonies adopted English jurisprudence that,³⁰ unlike civil law countries, narrowed the scope of judicial disqualification so that a judge could only face disqualification if they had a direct pecuniary interest in the case.³¹ Thus, lacking basis in common law,³² disqualification for bias did not enter the stage until 1903, well after the founding of the United States, when Montana’s legislature answered the cries of a losing litigant.³³ This win for victims of judicial bias was part of a growing focus on ensuring that judges apply the law in an evenhanded manner,³⁴ eventually escalating into the federal law’s official acknowledgment.³⁵ The evolution of judicial disqualification finds itself at a fork in the road: some states in the West and Midwest, including California, allow disqualification with an allegation of bias alone—known as a peremptory challenge—while other states in the East and South join the federal courts in imposing stricter standards by requiring support for the allegation as well.³⁶

A. Federal Law

In 1911, 28 U.S.C. § 144 introduced judicial peremptory challenges into the federal realm.³⁷ This federal statute closely mirrors Section 170.6 as it permits the disqualification of a district court judge upon a timely affidavit claiming bias. However, it departs from Section 170.6 in a significant way: it requires the affidavit to “state the facts and the reasons for the belief that bias or prejudice exists” and accordingly affords less leeway to litigants.³⁸ On its face, its wording and legislative history hint at the intent for peremptory disqualification;³⁹ judicial interpretation steered it on the opposite trajectory.⁴⁰ After the Supreme Court in Berger v. United States opined that the challenged judge may conduct a hearing to scrutinize the alleged facts for legal sufficiency,⁴¹ the Court clarified in Liteky v. United States that “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display” fall short of bias.⁴² The latter case defined the extrajudicial source doctrine: critical, disapproving, or hostile opinions based on facts or events during the proceedings do not warrant disqualification unless “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”⁴³ Congress largely acquiesced to this rejection of peremptory intent lest they infringe upon the separation of powers by attempting to regulate the judiciary.⁴⁴ As a result, “disqualification under [28 U.S.C. § 144] has been rare.”⁴⁵ Naturally, the statute could no longer be classified as fully peremptory, distinguishing it from its state counterparts that order automatic disqualification, like Section 170.6.

B. California Law

1. California Code of Civil Procedure Section 170.6

In 1957, the California legislature debated whether to accept or deny the legacy of judicial peremptory challenges and ultimately concluded with the birth of Section 170.6 through an “overwhelming vote of both houses of the Legislature” and approval by the Governor.⁴⁶ The legislation was more radical⁴⁷ than California Code of Civil Procedure section 170.1 which concerns challenges for cause⁴⁸ and California Code of Civil Procedure section 170.5 (added as section 170.4 in 1897), which addresses bias as a ground for disqualification.⁴⁹ This was not the first time the Legislature dealt with judicial peremptory challenges: four previous measures failed to receive executive approval despite passage by the Legislature.⁵⁰ Therefore, Johnson v. Superior Court, the first case to apply Section 170.6, acknowledged how the “[s]tate [b]ar and the Legislature have long felt that there is a need for such a measure.”⁵¹

Unlike federal judges under 28 U.S.C. § 144, California judges generally fortified Section 170.6 by “liberally constru[ing it] with a view to effect its objects and to promote justice,”⁵² starting with its constitutionality. Since the constitutionality of peremptorily disqualifying a judge has been debated since the early twentieth century,⁵³ it comes as no surprise that Section 170.6 came under attack almost immediately after its enactment. Even before the Legislature took action, the courts in the state ruled in several cases that a similar disqualification statute enacted in 1937 was unconstitutional.⁵⁴ Johnson represented a turning point as the Supreme Court of California deemed Section 170.6 constitutional and overruled the lower court’s decision that “the statute makes an unconstitutional delegation of legislative and judicial powers to litigants and their attorneys and is an unwarranted interference with the powers of the courts.”⁵⁵ Section 170.6 is materially different from its unconstitutional predecessor because it calls for litigants to submit a sworn statement instead of a “judicial determination of the existence of the fact.”⁵⁶ According to the court, Section 170.6 complies with the Constitution and deserves protection because “[p]rejudice, being a state of mind, is very difficult to prove, and, when a judge asserts that he is unbiased, courts are naturally reluctant to determine that he is prejudiced.”⁵⁷ About twenty years later, Section 170.6’s constitutionality returned to the forefront in Solberg v. Superior Court—this court found no separation of powers violation under California Constitution Article III, Section 3.⁵⁸ In a post-Johnson and Solberg world, the conversation between Section 170.6’s proponents and opponents has shifted away from constitutionality, but policy concerns persist. As this Note will later discuss, the thousand-year-old debate has still not found its rest.

Section 170.6 was amended to widen its scope: beginning in 1959, the statute extended to criminal, not just civil, cases,⁵⁹ and beginning in 1961, oral statements under oath, not just written documents.⁶⁰ This trend halted in 1965, when the Legislature forbade litigants from receiving a judicial reassignment if their original judge already presided over a proceeding prior to trial that involved a “determination of contested fact issues relating to the merits.”⁶¹ For the next ten or so years, the statute was only amended twice—in 1967⁶² and 1976⁶³—to subject court commissioners and referees to potential peremptory disqualification as well.⁶⁴ The Legislature obviously did not shy away from its peremptory intent, given that the affidavit form was amended in 1981 to add “peremptory challenge.”⁶⁵ After another amendment in 1982 that clarified the timeliness requirement for single-judge systems,⁶⁶ the statute was expanded yet again in 1985. Now, litigants who file an appeal that results in the reversal of the trial court’s judgment qualify for protection if the “trial judge in the prior proceeding is assigned to conduct a new trial on the matter.”⁶⁷ Timeliness was then defined as ten days for criminal cases with an all-purpose assignment in 1989.⁶⁸ The following two amendments in 1998⁶⁹ and 2002⁷⁰ responded to modifications of the California Constitution—the elimination of the justice court⁷¹ and unification of the municipal and superior courts, respectively⁷²—which were products of the Legislature’s “stead[y] move[ment] towards completion of the courts’ restructuring.”⁷³ In 2003, the Legislature merely maintained the codes⁷⁴ and did not make any substantive changes.⁷⁵ The last amendment, in 2010, made similar corrections, but also extended the filing deadline for civil cases with an all-purpose assignment to fifteen days after receiving notice of the assignment⁷⁶ and “codif[ied] existing court practices by requiring the party making the challenge to notify all other parties within five days after making the motion [to peremptorily disqualify the judge].”⁷⁷

In general, Section 170.6 guarantees litigants the extraordinary right to have an alternate superior court judge hear their matter once they accuse their judge⁷⁸ of bias, even without any factual basis for actual bias.⁷⁹ Litigants can raise a challenge under Section 170.6 at any trial, special proceeding, or hearing involving a “contested issue of law or fact,”⁸⁰ including trial, law and motion proceedings, injunction hearings, and contested probate or family law proceedings, but excluding settlement or case management conferences.⁸¹ Each side in a case, defined by whether the co-plaintiffs or co-defendants have substantially adverse interests,⁸² is given one challenge—the norm.⁸³ “[I]f the trial judge in the prior proceeding is assigned to conduct a new trial⁸⁴ on the matter” after “reversal on appeal of a trial court’s final judgment,” the movant can still use Section 170.6 regardless of whether they have already availed themselves of this procedure.⁸⁵ They, however, cannot make the motion “for the first time in post-trial matters which are essentially a ‘continuation’ of the main proceeding,”⁸⁶ meaning “action[s] . . . involv[ing] ‘substantially the same issues’ and ‘matters necessarily relevant and material to the issues involved in the original action.’ ”⁸⁷ Absent good cause, there is no continuance of the trial or hearing because of the motion; if a continuance is granted for other reasons, the matter must be continued for limited periods to be reassigned as soon as possible.⁸⁸ In the aftermath of the 2010 amendment, civil litigants must serve notice on all parties within five days of making the motion.⁸⁹

Either an affidavit accompanied with a declaration that a “fair and impartial hearing or trial cannot take place” under penalty of perjury⁹⁰ or an oral motion under oath will suffice as long as it is made before the hearing or trial commences.⁹¹ Litigants should submit the written or oral motion “as soon as possible after [they] know[] with some reasonable certainty who the actual trial judge will be”⁹² and must take care to abide by the timing rules governing master calendar, all-purpose, and single-judge systems. Table 1 below describes each of these various case-management systems and their nuances:

Table 1.
Case-Management System	Definition	Rules
Master Calendar	The case is assigned to different departments for specific types of matters.^a	The litigant should make the motion to the judge supervising the master calendar. When the case is set for immediate trial, litigants are instructed to make their challenge at the time of assignment, but when the case is set for a later trial date, they should comply with the 10-day/5-day rule.^bThe 10-day/5-day rule dictates that a litigant must make their challenge at least five days before the trial or hearing date if the judge’s identity is known at least ten days before the trial or hearing date.^c If they wait until they appear before the judge, they will have essentially waived their right to challenge that judge.^d However, a late-appearing or late-named party will not be penalized as long as they make the motion within ten days after their appearance.^e
All-Purpose/ Direct-Calendar	The randomly assigned judge “maintain[s] [their] own calendar, set[s] and handl[es] all motions and other proceedings, and conduct[s] trial.”^f At the time of the assignment, the judge must be expected to process all substantial matters in addition to trial.^g	Once a civil litigant receives notice^h of an all-purpose assignment, they have fifteen days to make their challenge.ⁱ If the litigant receives service by mail, they are entitled to a five-day extension.^j However, if the litigant has not yet appeared, they have fifteen days after their appearance.^k For a criminal litigant, they have ten days instead of fifteen days.^l
Single-Judge	There is only one judge in the courts.^m	A litigant must make their challenge within thirty days after they first appear in the action.ⁿ
Sources: ^aO’Connor’s California Practice Civil Pretrial, supra note 48, at Ch. 3-E § 3.3(2)(a). ^bSee, e.g., People v. Roerman, 10 Cal. Rptr. 870, 878–79 (Ct. App. 1961) (rejecting the motion because it was not made until the day trial was scheduled to begin even though the case was calendared to the judge for more than a month). ^cE.g., Eagle Maint. & Supply Co. v. Superior Ct., 16 Cal. Rptr. 745, 747 (Ct. App. 1961). ^dSee, e.g., Michaels v. Superior Ct., 7 Cal. Rptr. 858, 860–61 (Ct. App. 1960); Peremptory Challenges to a Judge in California, L. Off. of Stimmel, Stimmel & Roeser, https://stimmel-law.com/en/articles/peremptory-challenges-judge-california [https://perma.cc.6NLU-5PLS]. ^eSch. Dist. of Okaloosa Cnty v. Superior Ct., 68 Cal. Rptr. 2d 612, 612 (Ct. App. 1997). ^fO’Connor’s California Practice Civil Pretrial, supra note 48, at Ch. 3-E § 3.3(2)(b). ^gSee, e.g., People v. Superior Ct. (Lavi), 847 P.2d 1031, 1043 (Cal. 1993). ^hAccording to the opinion of Cybermedia, Inc. v. Superior Ct., 82 Cal. Rptr. 2d 126, 127 (Ct. App. 1999), notice should reference the case name and full case number and be addressed to the attorney if the party is represented; otherwise, it is insufficient. ⁱCal. Civ. Proc. Code § 170.6(a)(2) (Deering 2023). ^jMotion Picture & Television Fund Hosp. v. Superior Ct., 105 Cal. Rptr. 2d 872, 876 (Ct. App. 2001). ^kCiv. Proc. § 170.6(a)(2). ^lId. ^mO’Connor’s California Practice Civil Pretrial, supra note 48, at Ch. 3-E § 3.3(2)(b). ⁿSee, e.g., People v. Superior Ct. (Smith), 235 Cal. Rptr. 482, 484 (Ct. App. 1987) (refusing the movant’s argument that their motion was timely because it was made within thirty days after their attorney’s first appearance).

If litigants who successfully appeal the trial court’s judgment end up with the same trial judge, they must make the motion “within [sixty] days after the party or the party’s attorney has been notified of the assignment,”⁹³ or else it will be time-barred. The motion must be directed to the very judge under attack (the particular department will not suffice) who will then determine if it has been duly presented.⁹⁴

There are compelling policy reasons for these rules, namely that both litigants who “wish[] to postpone [the] motion until [they are] fully informed” and the court that needs “time to make adjustments after a disqualification” are satisfied.⁹⁵ Also, criminal litigants have less time to submit their motions than civil litigants because, like the Legislature probably thought, there are heightened concerns of abuse in criminal cases⁹⁶ in which “the sides . . . are not in symmetrical positions,” as the prosecution possesses more power.⁹⁷ Criminal cases usually involve juries that dilute the judge’s influence, whereas civil cases are usually wholly decided by the judge.⁹⁸ Even so, criminal defendants are insulated from the “depriv[ation] of life, liberty, or property, without due process of law” by the Bill of Rights in the Fifth Amendment of the U.S. Constitution.⁹⁹ Given what they have to lose as compared to civil litigants, it is critical to avoid infringement on their right to a fair trial.

If the motion is timely filed with acceptable form,¹⁰⁰ it will be granted, and the transition process is automatic in the sense that the affidavit is not contestable. The “judge immediately loses jurisdiction over the case,” and “any action that [they] make[] in the case [is] considered ‘void,’ ” save to transfer the case to another judge.¹⁰¹ A challenge is “exercised when the challenged judge transfers the case for reassignment,”¹⁰² and it cannot be rescinded, no matter what—the dismissal of the movant makes no difference.¹⁰³ If no other judge is available, the disqualified judge should contact the Chairman of the Judicial Council to solicit the assignment of an outside judge.¹⁰⁴ In order to prevent the appearance of judicial impropriety, if the judge is assigned to more than one case concerning the same movant, they are disqualified from all such cases.¹⁰⁵ A writ of mandate petition is the “exclusive means of appellate review” for the motion, irrespective of its success.¹⁰⁶ Upon a failed motion, the litigant has two avenues of redress before appeal: review by a different judge, like the district’s chief judge, and mandamus review.¹⁰⁷ On the other hand, litigants who never assert a challenge will have “forfeited the right to complain about [how the trial court’s alleged bias affected subsequent rulings] on appeal.”¹⁰⁸

2. Judicial Rules

Section 170.6 intersects with other bodies of judicial rules, complicating the tapestry of California peremptory disqualification law. Upholding impartiality in the courts permeates all the guidelines that judges should follow, regardless of origin—Standard 10.20(b)(3) of the California Rules of Court instructs judges to “ensure that all orders, rulings, and decisions are based on the sound exercise of judicial discretion and the balancing of competing rights and interests and are not influenced by stereotypes or biases.”¹⁰⁹ In light of this goal, the California Rules of Court encourage outreach to the community¹¹⁰ and collaboration with local committees and bar associations that endorse programs designed to educate about unconscious biases.¹¹¹ When litigants encounter judges who ignore Standard 10.20 of the California Rules of Court, they can submit complaints of bias either directly to the court or to the Commission on Judicial Performance without losing their statutory remedy through Section 170.6.¹¹² California Code of Judicial Ethics Canon 3D(4), Government Code section 68725, and Rule 104 of the Rules of the Commission on Judicial Performance obligates judges to cooperate with the Commission on Judicial Performance.¹¹³ In one instance, the Commission on Judicial Performance ordered the removal of a judge who communicated with the potential movant to stop their challenge.¹¹⁴

California Code of Judicial Ethics Canon 3B(5), Canon 3C(1), and Canon 3E(5)(f)(iii), among others, comport with the Model Code of Judicial Conduct rule 2.3¹¹⁵ because they advise that judges should be free of bias.¹¹⁶ Similar to the California Standards of Judicial Administration, California Code of Judicial Ethics Canon 3B(6) directs judges to “require lawyers in proceedings before [them] to refrain from . . . bias.”¹¹⁷ They consequently may feel cognitive dissonance (psychological discomfort from simultaneously complying with incongruous beliefs¹¹⁸) from essentially allowing litigants to discriminate against them using Section 170.6. Granted, these “standards, insofar as they may conflict with [S]ection 170.6, would be ‘invalid’ since the Judicial Council may only make rules which are not inconsistent with statute,”¹¹⁹ but this paradox may still trouble them. Furthermore, California Code of Judicial Ethics Canon 3D(1) instructs judges with reliable information on the violations of other judges to report those violations to the appropriate authority and take any other corrective actions.¹²⁰ Considering these numerous regulations that either officially or informally punish judges who harbor biases, whether explicit or not, are peremptory disqualifications truly necessary?¹²¹

3. Comparison to Peremptory Juror Challenges

In California, judicial peremptory challenges enjoy less resistance than in some other jurisdictions¹²² but are nonetheless more controversial than peremptory juror challenges. The California legislature passed AB 3070 in 2020—a proposal to require “the party exercising the peremptory challenge [to] show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.”¹²³ The Legislature deliberately replaced the need to show purposeful discrimination under an objective standard in order to better target unconscious bias.¹²⁴ Unlike judicial peremptory disqualification, in which there is confusion regarding who holds the cause of action for discriminatory exclusion,¹²⁵ the bill clearly gives the right to both the party and the trial court. California Governor Gavin Newsom signed the legislation into law (California Code of Civil Procedure § 231.7), which went into effect for criminal trials on January 1, 2022 and will take effect for civil trials starting January 1, 2026.¹²⁶ The statute joined reforms in other states:¹²⁷ Washington enacted a similar procedure in 2018 that was praised as a solution to Batson v. Kentucky,¹²⁸ a landmark case prohibiting unconstitutional discrimination during jury selection.¹²⁹ After observing Batson’s shortcomings in actually resolving racial bias and discrimination,¹³⁰ supporters argue that the spirit and letter of this legislative decision carries the promise of giving life to the federal precedent.¹³¹

But this law is not without dissenters. The Alliance of California Judges rebukes it for creating “confusion and delay” since “lawyers could challenge every peremptory challenge made by the other side.”¹³² Ultimately, it falls short of putting an end to peremptory juror challenges altogether, making others think that the change is not enough: Senate Bill 212 was introduced in 2021, which would have abolished peremptory challenges in criminal cases.¹³³ One wonders at the end of the day if it is still accurate to classify this challenge as peremptory as “[a] challenge subject to questioning and explanation is, by definition, not peremptory.”¹³⁴ Whether judicial peremptory challenges can inherit this reform such that it is workable to judges poses an interesting question.

C. Comparison Between California Law and Other States’ Law

Section 170.6 is one of the two forms of judicial peremptory challenges practiced by twenty states. Judicial officers in thirteen states, like jurors, can be substituted upon request without any accusation of improper personal interest, while those in the remaining seven states can only be substituted upon an affidavit of bias.¹³⁵ Table 2 below describes some differences between Section 170.6 and peremptory challenge statutes in other states:

Table 2.
Parameters	Section 170.6	Statutes in Other States
Is there a fee for reassignment to a new judge?	No	Yes^a
How many challenges to a party per case?	One	Two^b
Does alignment of interest or lack thereof define a party (or side)?	Yes	No^c
Must litigants informally ask the judge to voluntarily recuse from the case before filing an affidavit?	No	Yes^d
Can criminal litigants transfer their case to a different judge?	Yes	No^e
Sources: ^aSee, e.g., Mont. Code Ann. § 3-1-804 (West 2023); Nev. Rev. Stat. Ann. § 1.230 (West 2023). ^bE.g., Or. Rev. Stat. § 14-250-70 (West 2023). ^cMo. R. Civ. Pro. § 51.05 “divides the parties into classes (e.g. plaintiffs, defendants, third party plaintiffs, third party defendants, interveners) and affords one change of judge per class” and Nev. Rev. Stat. Ann. § 1.230 treats “[e]ach action, whether single or consolidated . . . as having only two sides. Clingman, supra note 135, at 337–38. ^dS.D. Codified Laws § 15-12-22 (2023); see Clingman, supra note 135, at 338. ^eInd. Code Ann. § 35-36-5-1, Nev. Rev. Stat. Ann. § 1.230, Tex. Gov’t Code Ann. § 74.053, and Wyo. R. Civ. P. 40.1(b)(1) are some statutes that recognize this right in civil cases only. Clingman, supra note 135, at 338.

Although these states are not uniform in protocol, they all place weight on a movant’s good faith and decline to investigate whether the movant’s reasons, if even stated, are true, differentiating state law from federal law, which demands supporting facts.

II. THE POLICY TRADE-OFFS

A. Public Confidence in the Judiciary

Those who applaud the judicial peremptory challenge, a device that makes it easier to disqualify judges, emphasize its utility in maintaining and increasing public confidence that the judiciary will deliver equal justice under the law. Although “the law, not any individual or group, is a judge’s only legitimate constituent,” judges have free speech protections in judicial election campaigns.¹³⁶ If their views on controversial legal and political issues are broadcast through various media outlets, the public will naturally lose hope that due process¹³⁷ still exists in the courtroom. Since judges will likely reveal their biases, there are practitioners who advocate for appellate courts to adopt the peremptory strike system, as in California trial courts through Section 170.6, so the public can trust that their matters will be heard by a neutral arbitrator.¹³⁸ They echo Justice Kennedy’s advice for states to “adopt[] recusal standards more rigorous than due process requires” in an effort to protect judicial integrity.¹³⁹ Meanwhile, worried about the increasing caseload burdening the federal judiciary, some academics urge Congress to set up a commission responsible for establishing a judiciary reform act that would go into effect in 2030.¹⁴⁰ As the judiciary becomes more congested with inefficient case management and reduced dockets, judicial competence suffers, especially considering the “10% problem,” which is a “rough estimate of the percentage of district court judges who are considered unfit or limited in their capacity to dispense justice fairly.”¹⁴¹ These academics provide the 2030 Commission with a solution: peremptory challenges.¹⁴²

Curiously, the reason cited for condemning the challenge sounds familiar—increasing public confidence in the administration of justice. One legal scholar believes peremptory disqualification injures the judiciary’s reputation because “automatic transfer does not permit a judge to refute the allegations of bias, and so may create the public impression that more judges are biased, or have conflicts of interests, than is actually the case.”¹⁴³ Regrettably, judicial discretion, in which “the law gives the judge a range of options and choices, or relies on the judge’s assessment of the circumstances in drawing further conclusions,” exposes judges to criticism without crisis managers to guide them through this era of social media.¹⁴⁴ As committees and organizations dedicated to judicial independence face extinction, many stress the need for the legal profession to rally in defense of judges, perhaps by devoting resources to educating the public on what judges actually do.¹⁴⁵

B. Abuse of the Challenge

Peremptory challenges to judges can disrupt the harmony between not just a litigant and their judge, but also the litigant’s attorney and the judge, as well as the litigant and their attorney, essentially poisoning the most material relationships in the courtroom. First, the litigant must present the motion to the very judge they want disqualified.¹⁴⁶ Since the judge knows the movant’s identity, they may feel “frustrated at being required to grant relief to a party who had made what [they] consider to be an unwarranted slight to their integrity.”¹⁴⁷ If the motion is rejected, the litigant is stuck with the allegedly biased (and now insulted) judge until appeal because it is difficult to prevail on other review proceedings.¹⁴⁸ Second, although the attorney might wish to evade a particular judge for their entire legal career, a successful motion in one case does not insulate them from the judge’s hostility in future cases.¹⁴⁹ Third, caught in a web of ethical obligations, the attorney deals with an uncomfortable dilemma: Are they loyal to the judge or their client? No matter their self-interest to stay on good terms with the judge, they must reconcile their duty of vigorous advocacy on behalf of their client with their duty of honesty and respect to the court. They are probably tempted to use their affidavit power (that is, to capitalize on the boilerplate affidavit requesting only a conclusory accusation of bias) to win their client’s case, for they are given the benefit of the doubt.¹⁵⁰ However, their capability as “true advocates” is impeded by ethical rules that impose professional discipline should they lie about judges.¹⁵¹ They also cannot claim the full extent of free speech rights under the First Amendment, presumably fueling their apprehension at the growing number of sanctions in 2022.¹⁵²

Since the genesis of peremptory disqualification statutes, the risk of “judge shopping” has haunted legal scholars and practitioners alike. They argue that marginal improvements to judicial accountability do not warrant sacrificing judicial independence and integrity. When litigants judge shop under the guise of eliminating bias, they perpetuate the narrative that judges are simply “politicians in black robes” even though the Model Code of Judicial Conduct, court rules, judicial discipline sanctions,¹⁵³ and public opinion motivate judges to act properly. Admittedly, this illegitimate purpose is not allowed; the challenge, however, is an absolute right without regard for pretenses. For instance, according to one columnist, “[Section 170.6] could be warranted against the judge who tends to let all of [their] cases go to trial” if the attorney is “hoping to escape [the case] via summary judgment.”¹⁵⁴

To rebut these complaints of abuse, the challenge’s supporters point to the stringent rules governing the motion: specifically, its timing (framed as rushing litigants to “move[] as expeditiously as . . . is possible . . . after theretofore agreed on matter becomes litigated”¹⁵⁵) and form. These restrictions should discourage litigants from not only judge shopping, but also “from waiting to see how the judge views the case and rules on motions before making the peremptory challenge decision.”¹⁵⁶ Section 170.6, for example, is a “limited right and is not a vehicle for disqualifying judges in all situations in which there is a potential for bias.”¹⁵⁷ One law professor advances a limited conception of misuse such that litigants (1) can avoid extremist judges who are not necessarily biased but (2) cannot technically judge shop since a randomly assigned judge will preside over the previously assigned judge’s disqualification.¹⁵⁸ Peremptory disqualification increases the chance of the new judge sharing the same beliefs as most judges, which promotes a representative judiciary that reflects the citizenry because “an average judge may be more representative than a random one.”¹⁵⁹ This kind of judge shopping, as defined by the challenge’s opponents, is akin to “forum shopping,”¹⁶⁰ but the former is attacked as a radical threat to American ideals, while the latter enjoys more forgiveness from critics. The same can be said of “filing several cases simultaneously and dismissing all but the case before one’s preferred judge.”¹⁶¹ Besides statutory safeguards, like the very short window of opportunity to exercise a challenge, litigants might eschew the challenges—if their motion succeeds, they risk an even more unfavorable judicial draw, but if their motion fails, they risk a resentful judge.

C. Intimidation of Judges

There is also a strong assertion that judges will encounter intimidation, further cementing the deadlock between the two stances. A judge is more likely to be influenced by pressure from the litigant and their attorney when the defendant’s life, liberty, and property are hanging in the balance—in other words, criminal cases. Does the judicial peremptory challenge enable prosecutors to shop for “law and order” judges who are “tough on crime”?¹⁶² If a judge is peremptorily disqualified from every criminal matter to which they are assigned (colloquially known as “papering” or “blanket challenges”),¹⁶³ they risk not only a non-criminal reassignment that poses a “very serious problem for a judge whose entire legal career has been spent in the criminal justice system,”¹⁶⁴ but also transfer to a court that is, in their opinion, more inconvenient or less prestigious.¹⁶⁵ As judges try to appease prosecutors to avoid repeated disqualification, the pool of judges actually deciding criminal cases becomes undersaturated with lenient and liberal judges.¹⁶⁶ Prosecutorial control over judges (along with other challenges due to unusual judicial philosophies) results in a much smaller spectrum of worldviews among judges, hampering the development of legal interpretations and encumbering healthy debate.¹⁶⁷ Erwin Chemerinsky responds to the “unlimited use of peremptory challenges against a single judge, albeit in different cases,” by prescribing even greater procedural protections.¹⁶⁸ However, even if litigants manipulate this mechanism to pressure judges,¹⁶⁹ it is hard to imagine judges succumbing to partiality after only one or even a few cases. Perhaps district attorneys or public defenders who frequently appear in the same court can effectively intimidate judges,¹⁷⁰ but in the big picture, criminal cases make up a small subset of total filings.¹⁷¹

D. Discrimination Against Judges

Two law professors illustrate how judicial peremptory challenges can act as a vehicle for discrimination: one uses a hypothetical,¹⁷² while the other uses two cases in which attorneys were accused of discriminating against their judges.¹⁷³ There is a 1985 study suggesting that race-based abuse of the challenge was rare,¹⁷⁴ but the latter professor dismisses its applicability because there is now greater awareness about the unconstitutionality of racially charged decisions,¹⁷⁵ especially after Batson and J.E.B. v. Alabama ex rel. T.B.¹⁷⁶ With more judges who identify with marginalized groups, there are consequently more opportunities for challenges based on protected characteristics (leading to disproportionate disqualifications along racial lines, for example).¹⁷⁷ In California, where 63.1% of judges are white, a white judge will probably substitute a disqualified judge of color.¹⁷⁸ These removals are contrary to a socioeconomically representative judiciary—judicial officers from historically oppressed groups are more likely to have public-interest experience and less likely to have a upper-class background than their colleagues.¹⁷⁹ Additionally, empirical studies implying that age and gender are outcome determinative may tempt litigants into issuing ageist or sexist challenges.¹⁸⁰ Other studies have confirmed the discriminatory effects of peremptory juror challenges,¹⁸¹ substantiating arguments that the challenge is inherently flawed and does more discriminatory harm than any good.¹⁸² This could ring true for judicial peremptory challenges as well: What is stopping attorneys who discriminate against jurors from also discriminating against judges?

Then again, litigants are forbidden from exercising the challenges solely based on group affiliation like race and ethnicity, gender, sexual orientation, religion, and so forth.¹⁸³ They may not even want to rely on such factors—a judge’s “prior decisions made while on the bench, statements made in public forums, [and] professional and political reputations years deep”¹⁸⁴ better predict judicial propensity, after all. According to a member of the Alaska Judicial Council, the challenges in that state did not, in fact, depend on race or gender.¹⁸⁵ The problem, however, is not simply solved. Take California Code of Civil Procedure section 170.2, Section 170.6’s sister judicial disqualification statute, for example. It prohibits discrimination against judges, yet it does not seem to apply to Section 170.6.¹⁸⁶ Despite precedent that judges deserve shelter under the Equal Protection Clause of the Fourteenth Amendment,¹⁸⁷ “any party charging that [their] adversary has used a [S]ection 170.6 challenge in a manner violating equal protection bears the burden of proving purposeful discrimination,”¹⁸⁸ which is a high, if not unattainable, standard. Historical patterns of a movant’s discrimination could replace direct evidence of discriminatory intent, but there is a caveat: Is it possible to discern a pattern from a relatively small sample size?¹⁸⁹ Moreover, in the event the judge, as the right holder, declines to pursue their cause of action for discriminatory challenges, there is much uncertainty about whether litigants then have standing to object.¹⁹⁰

III. EMPIRICAL FINDINGS IN CALIFORNIA

A. Research Methodology

It appears that much of the policy debate about judicial peremptory disqualification is informed by theory rather than empirical data. Where are the surveys asking the public in states that allow the challenge about their confidence in the judiciary and perception of judicial bias? There is some research investigating how the challenges can intimidate judges (especially if initiated by prosecutors¹⁹¹) and discriminate against judges of a certain race or gender.¹⁹² Nonetheless, there remains a dearth of statistical findings regarding the frequency and type of abuses resulting from peremptory challenges in actual operation.¹⁹³ “[W]ithout [the collection of empirical data], predictions about what attorneys will do [or cause] with peremptory challenges are guesswork,” leaving the aforementioned hypotheses with no answers.¹⁹⁴ Therefore, this Note aims to paint a more complete picture by tackling two questions: (1) do strict procedural rules really act as a barrier to slow the number of disqualifications, so the number of disqualified judges is roughly equal to the number of judges disciplined for bias, and (2) are there discriminatory effects based on judges’ political parties that prevent a representative judiciary? It will do so by adhering to the recommendations to examine orders on peremptory challenges in cases.¹⁹⁵

Due to limited time and resources, only the available orders on LexisNexis (specifically, the 240 citing decisions of Section 170.6 after filtering for a timeline of January 1, 2021 to December 31, 2021) are analyzed. LexisNexis is a trustworthy source,¹⁹⁶ but checking other databases, such as Westlaw, would have ensured that this methodology did not overlook orders. This truncated sample is largely not generalizable to the years before or after 2021. California is also not a microcosm for the entire nation: when interpreting the number of disqualified judges who were registered Democrats versus the number of disqualified judges who were registered Republicans, one should remember that California is a “blue” state that is considered a Democratic stronghold. Further, this Note interprets suggestive trends, not causal relationships, from the data as no formal statistical methods are used. Lastly, given that the cases’ dockets, including other related orders, opinions, and filings are not reviewed, there is missing information for some orders (for instance, the disqualified judge’s identity, the order’s date, whether the order was accepted or denied, and the reason behind the decision), which could misrepresent the results. For decisions that anonymously mention both the disqualified judge and the supervising or presiding judge, and hence create confusion about the role of the decision’s author, the analysis below errs on the side of caution and excludes these orders when tracking disqualified judges. Ideally, the study would only include orders from 2021; for consistency, it includes orders both without a date and from before 2021 if the decision that discusses the order is from 2021.

B. Preliminary Empirical Data

There were 134 cases from January 8, 2021 to December 30, 2021 that revealed 158 ascertainable orders either accepting, denying, or discussing previously accepted or denied judicial peremptory challenges. For reference, there were 4,464,380 total filings in California superior courts in 2021.¹⁹⁷ Curiously, out of the 58 counties in California, only 11 (19%) had reported orders: Los Angeles (76 filed motions), Orange (41 filed motions), Sacramento (24 filed motions), San Diego (5 filed motions), Alameda (3 filed motions), Riverside (3 filed motions), Contra Costa (2 filed motions), Butte (1 filed motion), Madera (1 filed motion), San Francisco (1 filed motion), and Santa Clara (1 filed motion). Given that the study found 158 motions from just 134 cases and movants in only 11 out of 58 counties, this low occurrence of the challenges suggests that (1) litigants are generally not taking advantage of this litigation tool for improper purposes and (2) a majority of judges are perceived to be impartial. Since succeeding judges are randomly selected, there is a chance that litigants who detected bias in their judge would have issued a challenge if not for the fear that they might have to litigate under an even more biased judge. But, excluding pessimistic litigants who have little faith in judicial officers as a whole, it is unlikely that they will choose not to file a motion and endure a laborious litigation under a biased judge.

Among the 158 motions under Section 170.6, only 54 (34%) denied the challenge—Figure 1 displays the number of denials per specific reason:

Figure 1.

Section 170.6 is replete with rigorous procedural rules to make it harder for litigants to recklessly eliminate a qualified judge assigned to their matter. First, a little more than half of the denied motions (52%) failed to comply with Section 170.6(a)(2)’s timing standards.¹⁹⁸ Second, 4 challenges (7%) were defeated because they were addressed to an appellate judge and thus did not survive Section 170.6(a)(1).¹⁹⁹ Third, there was a three-way tie for reasons that blocked 3 motions (5.5%) each: submitting more than one challenge, in violation of Section 170.6(a)(4), whether it was from one party or one determined side;²⁰⁰ the continuation rule, codified by Section 170.6(a)(5); and the form standards, mandated by Section 170.6(a)(5) for written affidavits and Section 170.6(a)(6) for oral statements.²⁰¹ Fourth, 2 others (4%) were unsuccessful because the court had no authority.²⁰² Fifth, 1 (2%) was denied as the movant had not yet appeared in the action.²⁰³ There was also a strange motion that was declared a “sham” since the litigant who filed the challenge was not a real person—as a result, the judge denied the challenge as it was not “duly presented” in accordance with Section 170.6(a)(4).²⁰⁴ Regrettably, the reasons for 9 denials (17%) could not be gleaned from the publicly available case material.²⁰⁵

In line with the empirical finding that 66% of challenges were granted, attorneys, at least competent ones, are not only aware of the timing and form rules, but also successfully follow them. This comes as no surprise considering they are used to meeting the many deadlines that make up litigation. The odds of submitting a faulty challenge and consequently suffering under an offended judge are negligible—presumably, counsel would not carelessly file a motion that they know or should know is bound to fail. There are several safeguards that litigants must navigate, but untimeliness, the most frequent reason for rejected motions, was a weak barrier, stopping just 18% of the challenges. The statute counts on the time limit for filing the motion to prevent litigants from peremptorily disqualifying their judge based on how the judge has been ruling on the case. However, litigants or their attorneys may already know how the judge will view their case as soon as they receive the judicial assignment (or at least within the designated time frame) due to “random internet searches, anecdotal opinions from colleagues, or perhaps printed biographical material about the judge.”²⁰⁶ Hence, it looks like the limit on the number of challenges per case is the only statutory design that might effectively stall abuse, as litigants are reluctant to gamble that their new judge will not be worse.

The remaining 104 successful challenges (66%) disqualified at least 37 judges from 1 or more cases. Figure 2 below illustrates this proportion:

Figure 2.

Given there were 1,755 superior court judges in 2021,²⁰⁷ 2% of those judges (notwithstanding both the unnamed judges and judges who ruled prior to 2021) were peremptorily disqualified. According to the California Commission on Judicial Performance’s 2021 Annual Report, a judge was disciplined for bias on 8 occasions: 5 times for “bias or appearance of bias not directed toward a particular class (includes embroilment, prejudgment, favoritism)” and 3 times for “bias or appearance of bias toward a particular class.”²⁰⁸ For context, there were “1,868 judgeships within the commission’s jurisdiction” including the judicial positions at the supreme court, courts of appeal, and superior courts.²⁰⁹ Even if all 8 instances of bias were from different superior court judges, less than 1% (0.5%) of all superior court judges would have faced discipline.

According to this data, there were more disqualified judges (2%) than judges disciplined for bias (0.5%). Judicial accountability was promoted when the 0.5% of judges who deviated from ethical guidelines were disqualified; what about the remaining 1.5% of judges? Of course, these judges might have just luckily evaded discipline for their bias. Discipline, unlike peremptory challenges, requires an investigation, not solely a mere allegation.²¹⁰ That being said, if the litigants and their attorneys truly thought their judge was biased, they could have complained to the Commission on Judicial Performance (at least anonymously) in order to avoid facing the same judge again.²¹¹

A disqualified judge’s age, race, and gender, among other characteristics, were not easily identifiable. However, the judge’s political leanings (determined by which political party they were registered for) were discoverable for 21 out of the 37 disqualified judges. Thirteen judges (62%) were Democrats, 7 judges (33%) were Republicans, and 1 judge (5%) was a Libertarian. This Note is committed to preserving these judges’ anonymity as they may understandably want to keep their politics confidential. Unfortunately, the distribution of party affiliation in the state judiciary was not readily ascertainable, but the total voter registration by political party provided some context—in 2021, 46.5% of voters were Democrats, and 24% of voters were Republican.²¹² The comparison is illustrated by Figure 3 below:

Figure 3.

The law does not and cannot cover every kind of situation, so judicial discretion in the interpretation of the law maintains the legal system. Accordingly, judicial disqualification must take into account the diversity of experiences and legal philosophies that make up the bench. Each judge should have opportunities to arbitrate cases; otherwise, caselaw will cease to think outside the box. Yet, the data reveals that 62% of the disqualified judges were registered Democrats, and 33% of those judges were registered Republicans. Granted, without knowing how many California judges in sum have a Democratic-party affiliation, this is weak evidence for party-affiliation bias. But it is at least some insight that may suggest at best discriminatory effects and at worst purposeful discrimination against Democrat judges—for not only criminal, but also civil cases.²¹³ If judges from a particular political party are systematically taken off matters through peremptory challenges, the judiciary becomes less representative. Consider how there are “persuasive correlations between the political party of the appointing authority and the judge’s decisions on certain issues,” according to an academic study of judicial decision-making.²¹⁴ Other group affiliations are also implicated: Black, Hispanic, and Asian voters are typically more liberal than conservative.²¹⁵

Of 37 disqualified judges, 33 of them had reviews on The Robing Room—a forum “by attorneys for attorneys” in which “judges are judged.”²¹⁶ Fifteen judicial profiles had at least 1 comment from or before 2021 that mentioned a Section 170.6 motion—all but 1 recommended a peremptory challenge. Out of the 32 comments urging others to use Section 170.6 (many of which listed more than one reason), only 15 comments (47%) complained of the judge’s bias. While 3 comments (9%) gave no reason at all, the remaining 17 comments cited explanations that did not concern bias: 17 (53%) for incompetence, 9 (28%) for unpleasant temperament, 4 (12.5%) for unnecessary delay, and 4 (12.5%) for disliked persons working in the judge’s chambers. Out of respect for these judges, their identities will remain anonymous, especially since the information is not necessary to this Note’s analytical aims. Figure 4 below demonstrates this distribution of motives:

Figure 4.

Section 170.6 blatantly spells out the one acceptable rationale for challenging the judge—bias. When litigants abuse their affidavit power against unbiased judges (that is, “judge shopping,” although the term does not quite capture the concept), they are admitting their search for a judge who will favor their side. The sample of comments from The Robing Room implies that Section 170.6 is not an obscure and hidden procedure. Rather, attorneys understand that they can peremptorily disqualify their judge through Section 170.6. Fifty-three percent of these comments recommending a challenge did not complain that the judge was biased. Admittedly, it is uncertain whether the litigants who challenged their judge in this study held the same beliefs as these reviewers or were influenced by these reviews in making their challenge. Though the data does not definitively prove that reasons outside of bias motivated these challenges, it still exposes what some practitioners think these challenges should be used for. Incompetence, unpleasant temperament, unnecessary delay, and disliked persons working in the judge’s chambers are undoubtedly serious problems, but they are problems that nevertheless affect both the plaintiff and defendant—there is no favoritism and therefore no bias. The duty of vigorous advocacy on behalf of the client is not a free pass for attorneys to bend the law to their will.

Besides The Robing Room, there were other published sources documenting criticism of the disqualified judges: circulating petitions for removal, judicial corruption activism pages, and news articles about their behavior in their private or public lives. One news outlet asked a disqualified judge about her alleged bias toward women to which she responded that there is probably an equally strong sentiment that she is biased toward men. Notably, the Commission on Judicial Performance publicly admonished one of the disqualified judges for improper conduct extraneous to bias.

There is arguably universal consensus that public confidence in the judiciary is of the utmost importance—the public needs assurance that they can rely on the courts for remedies to their legal grievances. The uproar against judges on the Internet (that is, the petitions, activism pages, news reports, and so forth) feeds the public impression that judicial independence is forgotten and left behind on the courthouse’s steps. Even if a judge’s attitudes on contentious issues in the legal and political community escape the public eye, the seemingly innocuous knowledge of the judge’s political-party registration can speak volumes given modern political polarization.²¹⁷ Republican litigants confronting Democrat judges may believe the “politicians in black robes” will unequivocally rule left, and vice versa for Democrat litigants. The perception of bias in the courts is disconnected from whether bias is actually rampant among judges.

IV. ALTERNATIVES TO CALIFORNIA’S JUDICIAL PEREMPTORY CHALLENGE

A. Existing Alternative Procedures

Despite an overall low risk of abuse, since judicial peremptory challenges are seemingly infrequent, there is little need for the challenge at all, at least in its current form. The empirical findings cast alternative approaches in a new light. This Note focuses on three ideas for compromise: the panel-exclusion approach, the interlocutory appeal approach, and the independent judge approach.

1. The Panel-Exclusion Approach

The panel-exclusion approach advocates the adoption of a procedure similar to that used in arbitration.²¹⁸ Litigants would anonymously exclude judges who are randomly placed on the case’s panel.²¹⁹ Unlike the challenge as it currently stands, court administrators would provide litigants with a “compilation of numerous exclusion decisions,” including rates, prior to any challenge, so litigants can make informed decisions without relying solely on “mistakes in individual cases.”²²⁰ This is an especially fruitful modification considering the overwhelming amount of unsolicited opinions and false stories online. Judicial analytics not only puts judges on notice about their inappropriate behavior and thus provides opportunities to cure such behavior, but also wins trust from the public by prioritizing transparency and honesty.

2. The Interlocutory Appeal Approach

A retired Associate Justice of the Arkansas Supreme Court admires Tennessee’s civil procedure in which “[t]he judge refusing to recuse, following a motion to do so accompanied by an affidavit, must enter an order stating his or her reasons for not recusing and any other pertinent information from the record for an immediate, interlocutory appeal to the Tennessee Court of Appeals, where that court will expedite and conduct a de novo review.”²²¹ Through the appeal, parties who failed to disqualify their judge would not have to endure a lengthy trial with an offended judge. Therefore, the challenge’s opponents might appreciate this third type of recourse before appeal of the entire case (joining review by a different judge, like the district’s chief judge, and mandamus review). The retired Associate Justice praises its efficacy in guarding judicial integrity and due process and urges Arkansas, a state where judges have discretion to deny disqualification motions without stating reasons, to follow suit.²²² His argument has merit in other jurisdictions with automatic disqualification, such as California, because appellate review will presumably lead to fewer judicial removals and prevent the public from falsely believing that there are more biased judges than is actually the case. The remedy provides no relief to litigants and attorneys who fear the insulted judge’s retaliation, but it should curtail judge shopping, especially on discriminatory grounds like race or gender, and minimize the odds of judicial intimidation. There is instinctive apprehension about crowding the appellate dockets, including the Supreme Court, but the Tennessee Administrative Office of the Courts—finding only ten or less appeals per year in a span of three years—and a Tennessee Court of Appeals judge—a “self-described ‘fan of the rule’ ”—calm these concerns.²²³ However, litigants lacking sufficient resources may not appeal even if their judge’s personal views have irreparably infected the proceeding.²²⁴

3. The Independent Judge Approach

Although his analysis revolves around a federal recusal statute’s reform, one legal scholar contributes a slightly different antidote to this dialogue. Another disinterested trial judge (that is, not the affected judge with a personal stake in the challenge) should rule on the disqualification motion because even the best-intentioned judge might be oblivious to their own faults. He further diverges from the affidavit procedure by suggesting that “the challenged judge be encouraged to file evidence refuting facts asserted in the recusal motion, and perhaps also an explanation of why disqualification is not justified,” so there is an “adversarial presentation of the issue.”²²⁵ Judges may worry about offending their colleagues,²²⁶ but given dissenting opinions and reversals of lower courts’ judgments, they are likely already accustomed to internal disagreement and can consequently stomach any potential discomfort.²²⁷ Additionally, he contends that “the appearance of justice will be better served, even if the actual rate of recusal remains unchanged.”²²⁸

B. The Proposed Alternative Procedure

A more promising solution is a hybrid model between the panel-exclusion approach (specifically, the dissemination of judicial analytics) and the independent judge approach. After litigants receive the exclusion decisions and rates, they can file the motion with a different trial judge who will review both the motion and the challenged judge’s evidentiary explanation for factual and legal sufficiency. An interlocutory appeal is rendered unnecessary if an independent judge can accurately filter for allegations that actually deserve a judicial peremptory challenge. Admittedly, like federal law, this is not peremptory per se, but it will hopefully further reduce the number of “uninformed, misinformed, [and] delusional”²²⁹ litigants who exercise the challenge.

As judges lack crisis managers, it is imperative that resources are invested into educating the public on judicial duties and verified statistics on judicial bias. Unlike news outlets, petitions, social media posts, and activism pages probably do not check the accuracy of the information they release. With the help of Big Data²³⁰ and artificial intelligence, judicial analytics will become more accurate over time, which will better alert litigants about the judges who are actually biased than other unverified sources. By making such information accessible, perhaps litigants will place less weight on factors like the judge’s race and gender, for example. The Robing Room states that slanderous comments posted in bad faith are subject to removal;²³¹ realistically, it can hardly stop all “sour grapes” who harbor disdain toward their judge for merely siding with the opposing party after fairly applying the law to the facts. Consider how one of the disqualified judges in the study asserted that there are an equal number of people who think she is biased toward either women or men. There is a possibility that the other sources noted in the study, besides the public admonishment, are campaigns by losing litigants to unjustifiably vilify their judge.

It seems problematic to allow judges to entertain motions petitioning their own disqualification, and the public agrees.²³² An independent adjudicator should handle the challenge, so the challenged judge does not have to awkwardly decide their own neutrality. It is a win-win situation—if the reviewing judge finds the challenged judge corrupted with partiality, then the public will trust that the judiciary is void of collusion, but if the reviewing judge deems the challenged judge unbiased, then the public will have faith in the judiciary’s independence, and the judge will be guarded from discrimination. Some argue that the challenged judge is ideal because they are closest to the alleged facts;²³³ this is precisely the issue. That said, the reviewing judge may have a connection to the challenged judge—for example, a friendship—that skews their decision in favor of a denial. Perhaps the reviewing judge should show that there is no personal relationship to the challenged judge, but at some point, judges have to be trusted to rule fairly.

In lieu of an automatic transfer, judges can defend their fitness to serve and expose the litigants who use bias as a pretense for prohibited reasons, like discrimination based on party affiliation. It is easy for Section 170.6 to act as a Trojan horse carrying ulterior motives because automatic reassignment is swiftly delivered following a quick evaluation of procedural adequacy. If judges have no chance to prove the allegations of bias wrong, these litigants unwittingly trigger an endless feedback loop in which their baseless challenges inflate the number of “biased” judges which, in turn, instigates more challenges. The expectation is that fewer than 1.5% of judges will encounter peremptory disqualification, closing the disparity between the number of disqualified judges and the number of judges disciplined for bias. This will then demonstrate to the public that judges are not always predisposed to bias. To play devil’s advocate, the public may feel disheartened upon witnessing too many judges found guilty of bias, but the judiciary should commit to their integrity and weed out the “10% problem,”²³⁴ the estimate of incompetent judges. Judges inevitably do not command from Olympian heights; rather, they are subject to their beliefs and attitudes. It is difficult to procure solid evidence of judges’ unconscious biases,²³⁵ but litigants should still explain what manifestations, whether inside or outside the courtroom, caused them to suspect such biases.²³⁶ They should not have free reign to judge shop due to a random feeling, especially in the U.S. legal system that is rooted in proof. Judicial economy is indeed lost if an inquiry is made into the merits as well,²³⁷ but it is a wiser alternative than the current framework that passively allows litigants to chase unequal justice.

V. RECOMMENDATIONS FOR FUTURE RESEARCH

Regrettably, without formal statistical methods to control for irrelevant factors, this Note is unable to confirm a causal relationship between a judge’s peremptory disqualification and any complaints of bias on their Robing Room profile. For the same reason, it is unknown if failed judicial peremptory challenges affected case outcomes (comparing the case in which the challenge was initiated to any future cases with the disqualified judge—this would have informed the policy debate on whether disqualified judges are truly hostile). Therefore, the first recommendation for future research is setting up a more sophisticated study in order to discover results beyond mere correlations. Another recommendation is conducting surveys directed to (1) the public asking about their impression of judicial bias,²³⁸ (2) judges asking about their various group affiliations (especially characteristics that are not available through public materials such as race and ethnicity, gender, and age), and (3) attorneys asking what resources they have at their disposal when deciding whether they should use Section 170.6. Since judicial disciplinary proceedings for bias may miss judges with more subtle manifestations of bias, one suggestion is to conduct an experiment²³⁹ testing how widespread conscious and unconscious biases are among superior court judges in California. Ideally, this Note would analyze the relationship between the type of case (for example, personal injury) and judge shopping; unfortunately, there were not enough free and accessible documents online. For this pursuit, as a judge’s area of professional expertise is easy to find, future researchers should investigate whether movants of a specific type of case are strategically challenging judges with or without experience in that practice area. Lastly, the challenge’s prevalence is a regional phenomenon in the United States, so studies conducted in other states are recommended as well.

CONCLUSION

Notwithstanding limitations, the empirical data reported in this Note has value—it discovered that judicial peremptory challenges were quite rare and therefore abuse from these challenges was not out of hand. Among the few filed motions, most were automatically granted, indicating that the procedural protections were a flimsier shield than the statute had planned. Juxtaposing the higher percentage of disqualified judges with the lower percentage of judges reprimanded for bias implies that litigants are alleging bias as a mere formality. This is further corroborated by the finding that more than half of the comments on The Robing Room recommending others to challenge a certain judge did not mention bias.²⁴⁰ In regard to discrimination, it found significantly more Democrat judges disqualified than Republican judges. Without additional research, this Note can only surmise about possible fixes to prevent discrimination, like the standard for employment law in which the judge’s ability to perform their duties must relate to the reasons for exclusion.²⁴¹ Whether the challenge can inherit AB 3070 (the 2020 law that “requir[es] an attorney exercising peremptory strikes to show clear and convincing evidence [under an objective standard] that [their] action is unrelated to that juror’s membership in a protected group or class”²⁴²) such that it is workable to judges poses an interesting question. Altogether, this Note concludes that there is not a serious risk of abuse from the challenge but Section 170.6 is still not a satisfactory remedy by legislation—there is no need to settle for less when there is a better solution. As Justice Kennedy wrote, judicial disqualification standards should extend beyond the minimum requirement of due process; however, they should not stretch so thin when judicial integrity is not completely broken. The proposed alternative will heal the issues produced when the challenge is granted as a matter of right by implementing an audit into the accusation’s truth. In other words, as a middle ground in the policy dichotomy, it will perfect the peremptory challenge and diminish the risk of abuse even more than the current model.

97 S. Cal. L. Rev. 253

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Sarah Park*

* Executive Senior Editor, Southern California Law Review, Volume 97; J.D. Candidate 2024, University of Southern California Gould School of Law; B.A. Communication 2019, University of California, Santa Barbara. Thank you to Professor Jonathan Barnett and Professor Robin Craig for serving as my advisors. To my family and friends—law school, much less this Note, would not be possible without your continuous support. I would also like to express my gratitude to the dedicated members of the Southern California Law Review for their hard work.