The laws that specify the grounds on which judges may be disqualified differ from jurisdiction to jurisdiction. Perhaps the most significant difference is that, while in most states a judge may only be removed for cause, a number of jurisdictions have adopted statutes or court rules that allow a party to seek a judge’s disqualification on a “peremptory” basis. In those states which have “peremptory challenge” laws on the books, the primary purpose of those laws is to enhance the impartiality of the judicial process – or at least the appearance of impartiality – by permitting parties to disqualify judges they believe to be biased without making any showing of unfairness or bias.
The notion that a litigant should be permitted to disqualify a judge on the basis of a well-founded suspicion of bias dates back at least to Roman times. But the idea that a party should be allowed to disqualify a judge without making any showing of cause has not been without its detractors, who worry that peremptory disqualification provisions may be invoked for reasons unrelated to the goal of ensuring the actuality or appearance of a fair trial; and, therefore, that such provisions may be abused.
Other critics have expressed doubt about whether peremptory challenge provisions actually enhance the perception that courts are impartial. In fact, when a litigant is allowed to remove a judge at will the public could conclude that justice varies according to the judge; thus, the availability of a right to peremptorily challenge a judge may foster a perception that the judicial process is akin to a game of roulette. See Note, “State Procedures for Disqualification of Judges for Bias and Prejudice,” 42 N.Y.U. L. Rev. 484, 501 n.24 (1967).
1. For a vintage (1981) Federal Judicial Center microfiche discussing proposals then being discussed (but never enacted) for a federal peremptory challenge statute click here
2. For a step by step guide to making a peremptory challenge in California, including forms click here.
3. For a detailed discussion of the peremptory basis for disqualification – including an examination of the constitutionality of such provisions, the procedure for making a peremptory challenge, limitiations on the peremptory challenge right – see chapter 26 of Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007 and updated annually) http://www.banksandjordan.com/catalog.html. For a state-by-state examination of those peremptory disqualification provisions that are in effect see Chapter 27 of that book. See also this recent (2013) Wyoming Supreme Court Order repealing one peremptory challenge provision and amending another [http://www.wyomingbar.org/pdf/Order_Repealing_Rule_21.pdf], citing Judicial Disqualification. To locate libraries near you that have Judicial Disqualification in their collection click here.