Eric Muller has some interesting thoughts about the California practice (I believe called “papering”) of letting litigants reject, once per litigant per case, the judge that they’re drawn. The prosecution in the Peterson murder prosecution just did that to a judge.
I’m skeptical, though, of the argument that
[W]e worry about the partiality of jurors mostly because they are finding facts rather than making legal judgments. Fact-finding, it seems to me, allows somewhat more play for subtle life-experience biases than does making rulings of law. For those reasons, I guess, it seems to me that there’d be a pretty strong argument that peremptories against judges are unnecessary . . . .
Judges have huge discretionary authority over many evidentiary rulings (when evidence is unduly prejudicial, how much evidence is too much, etc.) — and, of course, in most cases in most states, they have huge discretionary authority over sentencing. Their decisions in both these areas, and some others, are reviewed with great deference by courts of appeals; even if an appellate panel might have reached a different decision, they will generally let the trial judge’s decision stand unless they’re pretty sure the judge went quite a bit too far.
And while in other areas, such as interpretation and application of law, appellate judges theoretically review the trial judge’s ruling from scratch, the trial judge’s ruling is still tremendously important, and as a practical matter involves a great deal of discretion. There’s thus vast room “for subtle life-experience biases” in decisions by judges. I have no strong opinions about peremptory challenges generally, as to judges or jurors; but I think this basis for distinguishing judges and jurors doesn’t quite work.
UPDATE: Reader Vince Lombardi (the coach’s grandson) writes:
Just to follow-up on your post of the California practice of being able to get rid of one judge per case. We have the same approach up here in Washington state — we call it an “affidavit of prejudice.” Each side gets one affidavit per case.
Despite the name, you really don’t have to explain why you think the judge is potentially biased against you. You can only affidavit the judge at the beginning of the case — after the judge makes a discretionary ruling of any type, the right to strike the judge is no longer available. The reason for this restriction is doubtless obvious — we don’t want litigants dumping a judge just because they don’t like the most recent ruling.
I think it’s a good practice. First, it is used very rarely. We all worry that a judge is going to take offense at being “affidavited” and tend to avoid doing it unless it’s absolutely necessary to protect a client. Indeed, many larger firms require individual lawyers to get prior approval from management or a committee before striking a judge.
Second, it’s a good way to track what lawyers think about a particular judge. In many of our Counties, statistics are kept regarding how many times a judge is affidavited. When a particular judge is struck more often than the mean over a period of time, it’s a pretty good indication of what the bar thinks about the judge’s abilities and fairness.
Finally, I think it curbs — a bit — the tendency to black-robe syndrome.
Just one practicing lawyer’s two cents. Love the site, keep up the great work.
I’d never heard the phrase “black-robe syndrome” before, but I think I can guess what it means.
FURTHER UPDATE: Patterico likewise argues that judges have tremendous discretionary authority, especially given the limitations that California law imposes on pretrial appeals.
Eric Muller also asked whether race-based peremptories of judges could be challenged much like race-based peremptories of jurors; he suggests that even if there is a constitutional ban on such peremptories, in practice it couldn’t be enforced, since each side gets only one challenge, so one can’t really show a pattern of race-based strikes. Patterico responds.
Here’s my thought: Lawyers might want to challenge jurors partly based on the juror’s race or sex (set aside whether it’s right or constitutional, and just focus on whether they’d want to) because often that’s one of the few things they know about a juror, and because they may have only a few moments in which to decide whether to accept a juror or not. They generally know much more about the judge, or can at least find it out within the time allotted to decide whether to challenge him. Considering the judge’s race and sex is thus going to be much less useful than considering a juror’s race or sex.
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