Judicial Peremptory Challenges as Access Enhancers

By Jeffrey W. Stempel

Abstract

Discussions regarding diminishing access to justice have centered on the high disputing costs, gradual contraction of substantive rights, and increasingly defendant-friendly procedure. The importance of the ideological, experiential, and jurisprudential orientation of the judges presiding over litigation at the trial level has received much less—and insufficient—attention. Because so much focus has been on federal appellate courts, commentators have largely overlooked a potentially powerful tool for improving access and promoting a fair airing of claims at the trial level: a litigant’s automatic ability to transfer a case to a different judge as a matter of right to avoid judges who are unduly hostile to claims for relief, recompense, or change. This procedure of automatic judicial reassignment exists in various forms in roughly one-third of the states and appears to work well. But federal courts—the courts perhaps most in need of such a tool— remain resistant.

This Article sets forth a rationale for giving all parties a right to an automatic judicial reassignment (judicial “peremptory challenges,” for lack of a better term) and addresses the concerns of opponents, who wrongly argue that giving litigants this option runs counter to the norm of judicial neutrality. On the contrary, such challenges enhance judicial neutrality and competence and reduce the risk that claims will be “smothered in the crib” by hostile trial judges. In a world with judges whose experience, orientation, competence, and productivity vary widely, the automatic right of reassignment can be a useful tool for increasing access. It should be expanded to all states and especially to federal courts.