APPOINTMENT, TENURE OF OFFICE AND COMPENSATION
OF JUDGES
The oldest which survives of our American Constitution, that
adopted by Massachusetts in 1780, requires the appointment of
judges to be made by the Governor of the State, with the advice
of the Council, and for good behavior.[Footnote: Constitution of
Massachusetts (1780), Chap. I, Art. 9; Chap, III, Art. 1.]
This plan was substantially followed in framing the Constitution
of the United States. That was planned for a small number of
States, perhaps only nine, certainly at first not over thirteen.
The Senate, therefore, would be a body small enough to serve as
an executive council. Its necessary enlargement by the admission
of new States has long made it but ill-suited for this purpose,
and has thrown the power of confirming or rejecting an executive
nomination for judicial office largely under the control of the
Senators from the State to which the person named belongs,
although this control is much weakened if they do not belong to
the party of the administration. The principle that the greater
the concentration of the appointing power, the greater will be
the sense of individual responsibility for every appointment
made, makes this result of a Senate of ninety members not wholly
unfortunate. The President now consults a council of two.
Thirteen States in all originally gave to the Governor the power
either of appointing or of nominating the judges of the higher
courts; fourteen gave their election to the legislature; the rest
preferred an election by the people.[Footnote: 'Baldwin, "Modern
Political Institutions," 58, 59.] If we compare the original
practice in each State with its present practice, we find that
there are now fewer in which the Governor appoints or nominates;
fewer in which the legislature elects; more in which the people
do. Legislative elections have been found to imply a system of
caucus nominations, and have often led to a parcelling out of
places among the different counties in which geographical
considerations told for more than did fitness for office. In one
State[Footnote: Conn. Constitution, Twenty-sixth Amendment.]
since 1880, the legislature has elected on the Governor's
nomination. In practice they have never failed to act favorably
upon it.
Mississippi, which, in 1832, became a leader in the movement
toward the choice of the judges by popular election, in her
latest Constitution (of 1890) follows the plan of the United
States, the Governor nominating and the Senate confirming.
The action of the confirming or electing body when unfavorable in
any State has generally been unfortunate. It is apt to be
affected by local or personal political influence to which the
chief executive would be insensible. A large number of able men
have thus, from time to time, been deprived of a seat on the
Supreme Court of the United States who would have added to its
luster. In 1867 Massachusetts lost a Chief Justice of the first
rank in this way by the defeat of Benjamin F. Thomas. The
council refused, by a majority of one, to confirm his nomination
because, though of the same party with them, he was of a
different wing.[Footnote: Proceedings Mass. Historical Society,
2d Series, XIV, 301.]
In most of the States the judges are now elected by the
people.[Footnote: In thirty-three. In one other (Florida) the
people elect the judges of the Supreme Court, and the Governor,
with the advice and consent of the Senate, appoints those of the
superior courts. The Governor nominates in Delaware, Mississippi
and New Jersey, and in the four largest New England States. In
Rhode Island and Vermont, South Carolina and Virginia, the
legislature elects.] This makes the choice more a political
affair. The nominations are made by party conventions, and
generally in connection with others of a purely political
character. It also, in case of a nomination for re-election,
places a judge on the bench in the disagreeable position of being
a candidate for popular favor at the polls and an object of
public criticism by the political press.
In 1902 a justice of the Supreme Court of Michigan was nominated
for re-election. There was an opposing candidate, some of whose
friends published a statement that in the nine years during which
the justice had already served he had written opinions in 68
railroad and street railway cases of which 51 were in favor of
the companies. He was re-elected, but some time afterwards this
fact was reprinted in a local periodical accompanied by the
remark that "we must conclude that either the railroad and
railway companies--4 to 1--had exceptionally good cases from the
standpoint of law and justice or his Honor's mind was somewhat
warped in their favor.... You can't expurge mental prejudice
from judicial opinions any more than you can from the reasonings
of theologians and atheists.... To imagine a justice deciding a
case against his personal interests is too great a stretch of
imagination for us to appreciate."
A less brutal but more dangerous attack, made in 1903 by a
religious newspaper, illustrates the same evil. The Supreme
Court of Nebraska has decided that under their Constitution the
Bible cannot be used in the public schools. It was, of course, a
pure question of the construction of a law, for the policy of
which the court had no responsibility. The newspaper in
question[Footnote: The Boston _Congregationalist_ of Oct. 3,
1903.] which, though published in the East, had some circulation
in that State, printed this paragraph:
"The Supreme Court judge of Nebraska who wrote the decision that
the State constitution prohibits the use of the Bible in the
public schools is standing for re-election, and the fact that he
made such a decision is not forgotten by the Christian voters."
In States the control of which by one of the great political
parties is assured, the real contest is for the nomination, and
here there is even more license for unfavorable comment on the
judicial record of one who seeks it. In a Southern State there
was such a struggle in 1903 for the nomination of the prevailing
party for Governor. The person who then held that place desired
it. So did one of the justices of the Supreme Court. It is said
that the friends of the former circulated a cartoon representing
the five justices together as five jackasses, and another in
which the justice whom they were trying to run off the field was
caricatured in the act of setting aside a verdict in favor of a
child injured by a railway accident. The two candidates
subsequently met upon the platform for a joint discussion of the
issues before the people. The Governor sharply criticised the
character of the Supreme Court. The judge caught him by the
collar and was about to strike him when friends intervened, and
an explanation of the remarks was made which was accepted as
satisfactory.
In the heat of a political campaign men do not always stop to
measure words or weigh questions of propriety. The personal
character and public acts of an opponent are a legitimate subject
of description and comment. Sharp attacks must be expected as a
natural incident of such a contest, and by candidates for
judicial office as well as others. The public record of all for
whom votes are asked at a public election must be the subject of
open criticism, or there would be danger that unworthy men would
succeed. To treat such observations as have been quoted upon
opinions previously written by a candidate for re-election,
however unseemly or unjust, as a contempt of court would be
indirectly to impair the right of free suffrage.
If assertions published as to acts done or words said are false,
it does not follow that they are libellous. An honest mistake
may be a defense for such a misstatement.[Footnote: Briggs
_v._ Garrett, 111 Penn. State Reports, 404; 2 Atlantic
Reporter, 513.]
Judges of trial courts, when candidates for re-election, may
expect the publication of similar attacks on rulings which they
have made. The following dispatches, which appeared in the same
issue of a local newspaper in Pennsylvania in 1903, when a county
election was soon to occur, will sufficiently illustrate this:
HOT JUDICIAL FIGHT PROMISED FOR MERCER.
COUNTY WILL BE SCENE OF AN INTERESTING
STRUGGLE FOR SEATS IN THE
LEGISLATURE.
Sharon, Pa., Dec. 25.--From present indications the coming
judicial fight in Mercer County will be a bitter one. Public
interest centers in the efforts of Judge S. H. Miller and his
friends to secure a re-election, and the attempts of his
opponents to place A. W. Williams of Sharon on the bench
instead. While the sole topic politically is on the judgeship,
the twenty or more candidates for Assembly are not losing the
opportunity of fixing their fences. They, too, have assumed a
reticence in regard to the matter of the judgeship. It is
expected that on the last lap of the race Williams and Miller
will be the only two men remaining. There are three other
candidates for the Republican nomination who have thus far
announced themselves. They are: W. J. Whieldon of Mercer;
W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville.
Judge Miller and A. W. Williams are the closest of friends.
JUDGE MILLER ASKS FOR MODERATION. BARS PURE
FOOD PROSECUTIONS BY REFUSING TO
SENTENCE THOSE CONVICTED.
Harrisburg, Pa., Dec. 25.--State Dairy and Food Commissioner
Warren has been confronted with a new proposition in his
crusade in Western Pennsylvania against violators of the pure
food laws. Judge S. H. Miller of Mercer County, before whom
several oleomargarine dealers were recently convicted for the
illegal sale of "oleo," has refused to sentence them on the
ground that the procedure of the State Pure Food Bureau is
persecution and lacking in equity. He takes the position that
grocers and saloon keepers, not being expert chemists, should
at least be warned previous to arrest, and be given a chance to
determine whether the foods they are handling are pure or
adulterated. Judge Miller's position is a serious impediment
in the way of the enforcement of the law, and Commissioner
Warren is preparing to take action that may compel him to
punish offenders convicted before him.
Not infrequently in the judicial history of the United States
there has been presented to a judge the choice between rendering
a decision according to his opinion of the law and the facts and
losing his seat, and rendering one according to public opinion,
or the public opinion of his party friends, and keeping it.
A judge of the High Court of Errors and Appeals in Mississippi
was one of the earlier martyrs in the cause of judicial
independence. The State had incurred a heavy bonded debt, which
she found it inconvenient to pay. The Governor, who had approved
the bills under which over $15,000,000 of the bonds had been
issued, concluded in 1841, after the issue, that it was forbidden
by the Constitution of the State, and issued a proclamation
declaring them void. In a suit in chancery this question came up
for decision in 1852. Meanwhile the policy of "Repudiation" had
been made a political issue and the people had given it their
approval by electing its advocates year after year to the highest
offices. The chancellor upheld the validity of the bonds, and on
appeal his decision was unanimously affirmed.[Footnote: State
_v._ Johnson, 25 Mississippi Reports, 625; Memoir of
Sergeant S. Prentiss, II, 268.] A few months later the term of
office of one of the judges who had concurred in this opinion
expired, and the people put a successor in his place who held
doctrines better suited to the public sentiment of the hour.
In the days preceding the Civil War, the validity of the laws
enacted by Congress to secure the recapture of slaves who had
fled to the free States was frequently attacked in the press and
on the platform. The Constitution expressly provided for such
proceedings, and the Supreme Court of the United States in 1842
had pronounced the "Fugitive Slave law" of 1793 to be valid in
all respects.[Footnote: Prigg _v._ Pennsylvania, 16 Peters'
Reports, 539.] The principle of this decision plainly covered
the later Act of 1850, but as public sentiment in the North
became more and more uncompromising in its hostility to the
existence of slavery under the flag of the United States, the
State courts were not always strong enough to withstand the
pressure to disregard precedents and let the Constitution give
place to what the phrase of the time called a "higher law."
In 1859, a citizen of Ohio was convicted in the District Court of
the United States and sentenced to jail for rescuing a fugitive
slave who had been recaptured in Ohio by an agent of his master,
to whom he had been committed in proceedings under the Act of
Congress. He was imprisoned in an Ohio jail, the United States
then having none of their own, but placing all their convicts in
State jails or prisons under a contract with the State to keep
them for a certain price. His counsel applied to the judges of
the Supreme Court at chambers for a writ of _habeas corpus_
against the Ohio jailer. He produced his prisoner and submitted
a copy of the warrant of commitment from the District Court. The
public were extremely interested in the outcome of the
proceedings. The Attorney-General of the State assisted in
presenting the petitioner's case. The Governor was one of the
multitude present in the crowded court room. The
Attorney-General declared that the position that the Supreme
Court of the United States had the power to decide conclusively
as to the constitutionality of the laws of the United States and
so tie the hands of the State authority was untenable and
monstrous. "Georgia," he said, "hung Graves and Tassel over the
writ of error of this same Supreme Court. God bless Georgia for
that valiant and beneficent example."[Footnote: _Ex parte_
Bushnell, 9 Ohio State Reports, 150.] It was, he continued, "a
sectional court composed of sectional men, judging sectional
questions upon sectional influences."[Footnote: _Ibid._,
161.]
Of the five judges, three held that the constitutionality of the
Fugitive Slave law was settled conclusively by repeated decisions
of the Supreme Court of the United States, and that the State
courts could not release the prisoner. Chief Justice Swan gave
the leading opinion. Its positions were thoroughly distasteful
to the people of Ohio. He knew they would be. His term, which
was one of five years, expired in the following February, and the
vacancy was to be filled at the State election in October. On
the day before the judgment was announced he told his wife that
this would be fatal to his re-election. "If the law makes it
your duty to give such an opinion," said she, "do it, whatever
happens." He gave it, and what they anticipated occurred. The
convention of his party declined to renominate him. He resigned
his office immediately after the election and retired to private
life at an age and under circumstances which made it
impracticable for him to re-enter the bar with success, but with
the consolation of knowing that he had acted right.
Chief Justice Day of Iowa, one of the ablest men who ever sat on
her Supreme bench, in the same way lost a re-election by writing
an opinion of the court, which announced a doctrine that was
legal but unpopular.[Footnote: Koehler _v._ Hill, 60 Iowa
Reports, 543, 603.] His term was soon to expire. He, too, knew
that this decision would prevent his renomination, and it did.
In 1885, Chief Justice Cooley of Michigan, one of the great
jurists and judges of the country, failed to secure a re-election
to its Supreme Court, which he had adorned for twenty-one years,
largely on account of an opinion which he had written supporting
a large verdict against a Detroit newspaper for libel. The
newspaper, upon his renomination, described him as a railroad
judge, and kept up a running fire through the campaign, which
contributed materially to his defeat.
Political contests cost money, and if judges appear as candidates
for popular suffrage they are naturally expected to contribute to
the expense. The other candidates on the same ticket do this,
and if those nominated for the bench did not, somebody would have
to do it for them, thus bringing them under obligations that
might have an unfortunate appearance, if not an unfortunate
effect. In New York, where some of the judicial salaries are
higher than anywhere else in the country, and the terms for the
highest places are long (fourteen years), it has been customary
for those placed in nomination to contribute a large sum to the
campaign expenses of their party. This is tacitly understood to
be a condition of their accepting the nomination, and the amount
to be paid is fixed by party practice. For an original
nomination by the party in power, it is said to be about equal to
a year's salary; for a renomination half that sum may suffice.
But a judge holding office by popular election must
in any case owe something to somebody for supporting
his candidacy. He is therefore under a natural inclination
to use his power, so far as he properly can, in
such a way as to show that he has not forgotten what
his friends have done for him. There is always a
certain amount of judicial patronage to be bestowed.
There are clerks and messengers, trustees and receivers,
referees and committees, perhaps public prosecuting
attorneys and their assistants, to appoint. Other
things being equal, no one would blame a judge for
naming a political friend for such a position. But as
to whether other things are equal he is to decide. To
the most upright and fearless man the danger of this is
great; to a weak or bad man the feeling of personal
obligation will be controlling. Justice Barnard of the
Supreme Court of New York once observed on the
bench that judges had considerable patronage to be
disposed of at their discretion, and that for his part
he had always succeeded in life by helping his friends
and not his enemies. For this practice, among other
things, he was impeached and removed from office; but
how many judges are there who yield to this temptation
without avowing it? A French critic of the
elective judiciary has thus referred to these remarks
of Justice Barnard:
Le Juge Barnard, qui formulait en plein tribunal cette
declaration de principes, fut decrete d'accusation et condamne,
non sans justes motifs. Mais son crime impardonable etait de
proclamer trop franchement les doctrines de la magistrature
elective: il trahissait le secret professionnel.[Footnote: Duc
De Noailles, _Cent Ans de Republique aux Etats-Unis_, II,
232.]
Most of the old thirteen States in their first Constitutions
provided that the judges of their highest courts should hold
office during good behavior, or until seventy years of age. New
York at first put the age of superannuation at sixty, but after
losing by this the services of Chancellor Kent for some of his
best and most fruitful years, postponed it to seventy. Georgia
was the first to set the fashion of short terms. Her
Constitution of 1798 provided that the judges of her highest
court should be "elected" for three years, but that those of her
inferior courts should be "appointed" by the legislature and hold
during good behavior. The legislature construed this as allowing
it to frame such a scheme of election as it thought best, and
that adopted was for the House to nominate three, from whom the
Senate elected one.[Footnote: Schouler, "Constitutional Studies,"
65.]
In all but three States (Massachusetts, New Hampshire and Rhode
Island) at the present time all judges hold for a term of years,
and as a general rule those of the higher courts have longer
terms than those of the inferior ones. The change from life
tenure to that for a term of years was partly due to several
instances which occurred early in the nineteenth century, in
which it was evident that judges had outlived their usefulness.
Judge Pickering of the District Court of New Hampshire lost his
reason, and to get rid of him it became necessary to go through
the form of impeachment. In 1803, Judge Bradbury of the Supreme
Judicial Court of Massachusetts, who had been incapacitated by
paralysis, was displaced in the same way, though only a few
months before his death. In 1822, an old man who was the chief
judge of one of the judicial districts of Maryland was presented
by the grand jury as a "serious grievance," on account of his
habitual absence from court. His physician certified that his
life would be hazarded if he undertook to attend, but the natural
answer was that then he should resign.
At present, for judges of the State courts of last resort, the
term in Pennsylvania is twenty-one years (but with a prohibition
of re-election); in Maryland, fifteen; in New York, fourteen; in
California, Delaware, Louisiana, Virginia, and West Virginia,
twelve; in Michigan, Missouri, and Wisconsin, ten; in Colorado,
Illinois, and Mississippi, nine. The general average is eight,
although that particular number obtains in but seven States. In
eighteen it is six. The shortest term is two, and is found in
Vermont. It may be noted that the original rule in Vermont was
to elect judges annually. As compared with the terms of office
prescribed at the middle of the nineteenth century, those at the
opening of the twentieth are on the average decidedly longer.
* * * * *
The compensation of most American judges is a fixed salary.
In some States, courts of probate and insolvency, and in all
justices of the peace when holding court, are paid by such fees
as they may receive, at statutory rates, for business done. As
in the case of sheriffs and clerks, judges under such a system
sometimes receive a much larger official income than any one
would venture to propose to give them were they to be paid for
their services from the public treasury. A clerk of court often
receives more than the judge, and some judges of probate and
insolvency more than the Chief Justice of their State.
In colonial times, judges were sometimes paid in part by fees, in
part by occasional grants by the legislature, and in part by a
regular stipend. This practice of legislative grants from time
to time in addition to their salaries was continued in
Massachusetts in favor of the justices of the Supreme Judicial
Court for a quarter of a century, in the face of a Constitution
which provided that they "should have honourable salaries
ascertained and established by standing laws."[Footnote: Memoir
of Chief Justice Parsons, 228.] It was evidently indefensible in
principle, and to remove judges, as far as possible, from
temptation either to court the favor or dread the displeasure of
the legislature it is now generally provided in our American
Constitutions that their salaries shall be neither increased nor
decreased during the term for which they may have been elected by
any subsequent change of the law. In a few States it is thought
sufficient to guard against the consequences of legislative
disfavor, and the Constitutions forbid only such a decrease of
salary.
The Chief Justice of the Supreme Court of the United States
receives $13,000 a year and his associates $12,500. Circuit
Judges have $7,000, and District Judges $6,000.
In the States, the Chief Judge of the New York Court of Appeals
receives $10,500 and his associates $10,000. The same salaries
are given in Pennsylvania. In New Jersey, the Chancellor and the
Chief Justice each receive $10,000 and the associate judges
$9,000. In Massachusetts, the Chief Justice receives $8,500 and
his associates $8,000. In the other States less is paid, the
average for associate judges in the highest courts being about
$4,350. Only nine States pay over $5,000. The Chief Justice in
many receives $500 more. These salaries are, however, generally
supplemented by a liberal allowance for expenses, and in some
States each judge is provided with a clerk. In New York, this
addition amounts to $3,700; in Connecticut, to $1,500; in
Vermont, to $300.
The salaries for the highest trial court generally closely
approximate those paid to the judges of the Supreme Court, and in
case of trial courts held in large cities are often greater.
Those for the inferior courts are much lower.
The judges of the principal _nisi prius_ court (which is
misnamed the Supreme Court) in New York City are allowed by law
to accept additional compensation from the county, and receive
from that source more than from the State, their total official
income being $17,500. The trial judges in Chicago also receive
$10,000, although the highest appellate judges in the State have
a salary of only $7,000.
It is not surprising that American judicial salaries are no
greater, but rather that they are so large. They are fixed by a
legislature, the majority of the members of which are men of very
moderate income, and when originally fixed in the older States it
was often by men not altogether friendly to the judiciary. It
was a saying of Aaron Burr, which was not wholly untrue in his
day, that "every legislature in their treatment of the judiciary
is a damned Jacobin club."[Footnote: "Memoir of Jeremiah Mason,"
186.] Only the influence of the bar has carried through the
successive increases which have been everywhere made.
The first pension to a retired judge ever granted in the United
States was one of $300 voted in Kentucky in 1803. It was offered
to one of the members of the Court of Appeals to induce him to
resign, but the year after his resignation the statute was
repealed on the ground that it was unconstitutional.[Footnote:
Sumner, "Life of Andrew Jackson," 120.] Since 1869, the United
States have allowed their judges who have reached the age of
seventy, after not less than ten years' service, to retire, at
their option, receiving the full official salary during the
remainder of their lives. Rhode Island gives hers the same
privilege after twenty-five years' service, and Massachusetts and
Maryland have somewhat similar provisions, except that the judges
on retirement receive but part of what they formerly did. The
Connecticut legislature is in the habit of appointing her judges,
both of the Supreme and Superior Court, when retired at the age
of seventy, State referees for life, with an allowance of $2,500
for salary and expenses, their duties being to try such questions
of fact as the courts may refer to them and to report their
conclusions.
Our State Constitutions now generally provide that judges shall
hold no other public office. Some also provide that all votes
for any of them for any other than a judicial office shall be
void.
* * * * *
Occasionally a judge, in order to eke out his official income,
accepts a salaried position, calling for but little of his time,
in a matter of private business employment. This, however, is
rarely done and there are obvious objections to it when the
employer is one likely to have business before the court. Many
of the judges of the higher courts, including several of the
justices of the Supreme Court of the United States, are
professors or lecturers in law schools.
The best mode of appointing judges is that which secures the best
men. Such men are unlikely to accept a place on the bench of one
of the higher courts, unless it carries with it some prospect of
permanence. It does, if it comes to them by way of promotion
after they have served acceptably for a length of time in an
inferior court. But most judges must be taken from the bar and,
save in very unusual cases, will be in large and active practice.
This must be totally abandoned if they take one of the higher
judicial positions; and if they take the lowest, must be made
secondary to it. A lawyer's practice is more easily lost than
gathered. If it is a solid one, it is of slow growth. For one
who has turned from the bar to the bench to expect on retirement
from office to resume his old practice would be to expect the
impossible. He may have achieved a position by his judicial work
which will enable him to take a better position at the bar; but
in that case his clients will be mainly new ones. He is more
likely, particularly if no longer young, to sink into a meagre
office practice and feel the pinch of narrow means, always doubly
sharp to one who by force of circumstances has a certain social
standing to maintain. The leaders at the bar therefore seldom
consent to go upon the bench unless they have property enough to
ensure their comfortable support after they leave it, without
returning to the labors of the bar.
This is one of those evils which carry in some sort their own
antidote. The lawyers, as a body, are always anxious for their
own sake to have an able and independent bench. They do not wish
to trust their causes, when they come before a court of last
resort for final disposition, to men of inferior capacity and
standing. They therefore can generally be relied on to urge on
the nominating or appointing power the selection of competent
men. Their influence in this respect is little short of
controlling. If competent men will not ordinarily go on the
bench of an appellate court, unless by way of promotion, until
they have accumulated a sufficient fortune to make them
comfortable in old age, then as competent men will usually, in
one way or another, be selected, and as few of these are men who
from their youth have been occupying judicial positions, the
judges will usually be possessed of some independent means. A
property qualification almost is thus imposed by circumstances on
those forming the American judiciary in its highest places. The
same thing is true of our higher diplomatic positions. As Goethe
has said, there is a dignity in gold. It is a poor kind of
dignity when unsupported by merit, but if to gold merit be
joined, each lends to the other solidity and power.
Among the men of the first eminence at the bar whom the
meagerness of the salary has kept off the bench may be mentioned
Jeremiah Mason, who declined the position of Chief Justice of New
Hampshire on this account, and William Wirt. Wirt in 1802 was
made one of the Chancellors of Virginia at the age of
twenty-nine. The salary and fees amounted to about five hundred
pounds a year. He married on the strength of it, but in a few
months found that his income was insufficient to maintain his
family, and resigned.[Footnote: "Memoirs of William Wirt," I, 91,
99.]
Dignity and power, however, are strong attractions. Theophilus
Parsons in 1806 left a practice worth $10,000 a year--the largest
in New England in his day--to take the place of Chief Justice of
Massachusetts on a salary of $2,500. After three years he sent
in his resignation, saying that he found that this sum was
insufficient for his support, even with the addition of the
income from such property as he possessed. The legislature
thereupon raised the salary to $3,500, and he remained on the
bench through a long life.[Footnote: "Memoir of Chief Justice
Parsons," 194, 228, 230.] In 1891, Richard W. Greene of Rhode
Island, who then had a practice of $8,000 a year, gave it up for
the Chief Justiceship of the State, though the salary was then
but $750, supplemented by some trifling fees. In a few years,
however, he resigned the office on account of the inadequacy of
the compensation.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 75.]
The qualities of a judge are by no means the qualities of a
politician. The faculty of looking at both sides of a question
and the power of forming deliberate and well-considered judgments
do not tell for much in a campaign speech. The politician's
title to support is standing by his friends. The judge's duty
may be to decide a cause against his friends. Many a lawyer of
eminence might accept a nomination from a President or Governor
involving no participation in a political election contest who
would refuse one from a party convention.
The general sentiment of thinking men in the United States is
that judges should never be chosen by popular vote. It is,
however, an unpopular sentiment. The people in general do not
appreciate the difference between their fitness to select
political rulers and to select judicial rulers--to choose out
good men and to choose out good lawyers. And the people make and
ought to make our Constitutions. Rufus Choate once said that the
question at bottom was, Are you afraid to trust the people? If
you answer Yes, then they cry out that "he blasphemeth." If you
answer No, they naturally reply, Then let them elect their
judges.
Jefferson was the first to suggest an elective judiciary, basing
his opinion on a misconception of the usage in Connecticut.
There, he wrote, the judges had been chosen by the people every
six months for nearly two centuries, yet with few changes on the
bench, "so powerful is the curb of incessant
responsibility."[Footnote: Works, VII, 9, 12, 13, 35; letter of
July 12, 1816, regarding a new Constitution for Virginia.] In
fact, the Connecticut judges were chosen annually, and those not
holding judicial powers as an incident of political ones were
appointed by the legislature. The experiment of resorting to
popular election was first fully tried in Mississippi in 1832,
under the influence of Governor Henry T. Foote, but in later life
he expressed his regret at the course which he had taken, and the
belief that it had weakened the character of the bench.[Footnote:
"Casket of Reminiscenses," 348.]
The scheme of popular election may be pursued with reasonable
success if the bar use all the influence at their command to
secure both good nominations originally and the re-election of
all who have served well.[Footnote: It is not uncommon for local
bar associations after the party nominations for the bench have
been made to refer them to a committee, on the report of which
those deemed the best are commended for popular approval. In two
judicial districts in Iowa, the lawyers nominate judges for the
district in a convention of delegates from the bar, and then see
to it that the nominations are ratified by the party conventions.
Simon Fleischmann, "The Influence of the Bar in the Selection of
Judges," Report of 28th annual meeting of the New York State Bar
Association (1905).] A conspicuous instance of its success under
such conditions is shown by the repeated re-election of Judge
Joseph E. Gary of the criminal court of the city of Chicago.
Originally elected in 1863, when it was called the Recorder's
Court, he has been re-elected for successive terms of six years
without a break, and in 1903, when he was 82 years old and still
in active service on the bench, received well-merited addresses
of congratulation from the Chicago Law Institute and the Chicago
Bar Association. Judges of Probate, whose functions are largely
of a business character, and who are brought into close contact
with the people at first hand, are frequently re-elected for a
long period of years with little regard to their party
affiliations.[Footnote: In the Probate District of Hartford in
Connecticut there have been but two judges during the last forty
years, though the elections have been annual or biennial.]
In case of those having long terms of office, a re-election comes
more easily and commonly. A man who has been ten or twenty years
upon the bench has become set apart from the community. The
people have ceased to think of him as one of themselves, so far
as the active political and business life of the day is
concerned. His position and his work, if it has been good, have
given him a certain elevation of station. Men have learned to
trust him, and to feel that his presence on the court helps to
make liberty and property more secure. If he receives his party
nomination, he is apt to secure a majority of votes, whether the
others on the ticket are or are not elected. The opposing party
often nominates him also, and sometimes, if his own gives the
nomination to another, nominates him itself, and with success.
In New York it has been generally the case that a good judge of
the Court of Appeals or Supreme Court is re-elected until he
reaches the age limit set by the Constitution. To accomplish
this, however, it has been necessary for the bar to use constant
efforts to bring the nominating conventions of both parties to
the support of the same man or men, and personal ambition and
party feeling have on a number of occasions set up an effectual
bar. Before a recent election of two judges in that State, in
preparation for which a scheme had been suggested by which one of
the outgoing judges of each party should be re-elected, a third
candidate for the succession, himself a prominent member of the
bar and an officer of the State, published a lengthy statement of
his claims, which concluded thus:
"I am a candidate for nomination to the office of Associate Judge
of the Court of Appeals at the coming Democratic State
Convention. I appeal to my fellow-citizens for their support.
While I do not believe that support for judicial candidacy should
be unduly importuned, I feel that the present circumstances
justify me in making this announcement. I have always stood by
my party in its dark days, when others voted the Republican
ticket in the interest of their business. I have assisted in
endeavors to so shape its policies as to make success possible.
Now that this has been accomplished, I do not think that my
fellow-Democrats will thrust me aside to make way for those who
neither affiliate with the party nor vote its ticket."
As a general rule, in the country at large political
considerations are decisive, both in cases of popular election
and of executive nomination, but as to the latter exceptions are
more frequent. One instance has occurred in which a President of
the United States nominated to the Supreme Court a member of the
party in opposition to the administration,[Footnote: Howell
E. Jackson, a Democrat, was thus appointed by President Harrison,
a Republican, in 1893. President Taft, a Republican, has since
appointed two Democrats, justices Lurton and Lamar, and made a
third Chief Justice.] and the same President, upon the creation
of the Circuit Court of Appeals, when there were a number of new
judges to be appointed, gave several of the places to those not
of his political faith. It is, however, to be expected that the
Presidents of the United States, as a general rule, will place
upon the Supreme Court none whose political opinions are not
similar to their own. It is a court wielding too great a
political power to allow this ground of qualification to be
lightly passed over.
Precisely because of this, the political antecedents of the
justices of the Supreme Court are more apt to be discoverable in
their opinions than is the case in State courts. Professor
William G. Sumner, in referring to the change of character of the
Supreme Court by reason of Jackson's appointments to it, remarks
with some truth that "the effect of political appointments to the
bench is always traceable after two or three years in the
reports, which come to read like a collection of old stump
speeches."[Footnote: "Life of Andrew Jackson," 363.]
In States where the judges are only appointed for a certain term
of years, it is not unusual for the Governor, if he has the power
of nomination, to exercise it in favor of outgoing judges who are
his political opponents. So, also, if there happen to be several
original vacancies to fill, it is the traditional method in a few
States to give one of the places to a member of the opposition
party. If the election belongs to the legislature, a similar
practice prevails in some of the older States. In Connecticut
but six instances of refusing a re-election to judges of the
higher courts for mere party reasons have occurred for more than
a hundred years.[Footnote: Judges Baldwin, Goddard, Gould and
Trumbull were dropped in 1818 and 1819 as an incident of the
political revolution which destroyed the Federalist party in
Connecticut and brought about the adoption of a Constitution,
under which the judges were to hold for life, to replace the
royal charter. Judges Seymour and Waldo were dropped in 1863
during the Civil War, because they were classed with the "Peace
Democrats." Their successors, however, were appointed from the
"War Democrats," though the legislature was Republican.] In
Vermont, where elections to the Supreme Court were annual, Judge
Redfield was placed on the Supreme bench and then re-elected year
after year for twenty-three successive years by legislatures
controlled by the party politically opposed to him.[Footnote:
Edward J. Phelps, "Orations and Essays," 220.]
In a few States it is not customary for his party to renominate a
judge more than once. Two terms are considered enough for one
man, and when he has served them he should make room for some one
else. Many a judge has thus been taken from the bench at a time
when, with the aid of experience, he was doing his best work.
Appointments to appellate courts are generally provided for by a
scheme calculated to prevent any sudden and general changes of
membership. Not more than one or two receive an appointment in
any one year, so that the terms of not more than one or two can
expire at the same time. Where judges hold for life or--as is
frequently the case--if there is a constitutional provision that
no judge shall hold office after reaching the age of seventy, the
vacancies will, of course, occur and be filled at irregular
intervals. All this, in connection with the natural tendency to
reappoint judges who have earned the public confidence, secures
to the court a certain continuity of existence and consistency of
view. In every court of last resort in the older States there
will be apt to be found some who have served ten or twenty years
and were at first associated with those who had themselves then
served as long. It is not easy to "pack" a court thus
constituted. If, however, some question of supreme political
importance is looming up, likely soon to become the subject of
litigation, the nominating or appointing power is not likely to
be insensible of the party advantages that may result from its
decision in a particular way by the highest judicial authority,
nor of the importance of the vote to be cast by each who may
share in its administration.
During the Civil War Congress passed a conscription law. The
Supreme Court of Pennsylvania pronounced it unconstitutional, and
advised the issue of a temporary injunction to prevent its
enforcement by the officials charged with that function. The
term of the Chief Justice was about to expire. The decision had
been made by three judges, of whom he was one, against two who
dissented. The political party to which he belonged renominated
him, but he was defeated at the polls. A motion was soon
afterwards made to dissolve the injunction. His successor joined
with the former minority in advising that the motion be granted,
and on the ground that the Act of Congress was not
unconstitutional. The two remaining members of the court adhered
to their former opinion.[Footnote: Kneedler _v._ Lane, 45
Penn. State Reports, 238. See this case reviewed in Pomeroy,
"Introduction to the Constitutional Law of the United States,"
Sec. 479.]
In some States the justices of the Supreme Court select one of
their number annually to be Chief Justice for the year ensuing.
In several, whenever there is a vacancy, the office falls, as of
course, to the justice who has the shortest time to serve. This
is a ready way to pass a title about and attach it to as many men
as possible in quick succession. Its ostensible defense is that
there can be no unfair discrimination and favoritism in such an
appointment, and that as the judge whose term has most nearly
elapsed will naturally be the one who has served the longest, he
will certainly have the advantages of experience. These
considerations deserve little weight in view of the sacrifices
that such a scheme entails. Unfair discrimination is indeed
prevented, but so is a just and proper discrimination. The plan
of promoting the senior associate justice when a vacancy occurs
is liable to similar objections, though in less degree. He is at
least not unlikely to serve for a considerable time.
To be a good Chief Justice requires special gifts. Whoever holds
that office should have not only learning and ability, but
patience and courtesy in a high degree. He must be methodical in
the transaction of business, if the docket of the court is a
large one. He should have the art of presiding over its public
sessions and disposing of the minor motions which may be made
from the bar with dignity and tact. He should be a man who
commonly carries his associates with him at its private
consultations in support of any doctrine which he is firmly
convinced to be the law applicable to the case in hand. He
should have the faculty of conciliation. He should know when to
yield as well as to insist, in order to secure the best results
for his court and for his State. He should be able to write a
clear and forcible opinion. The best lawyer in the jurisdiction
who may be supposed to have these qualities and will accept the
position ought to be at the head of its judiciary. Many have
been tempted from the bar by an offer of that place who would
have refused the appointment of associate justice. John Marshall
was one of these. Chief Justice Parsons of Massachusetts was
another. In the Supreme Court of the United States no Chief
Justice has ever been appointed from among the associate
justices, although a nomination was offered to and declined by
Mr. Justice Cushing in 1796. In the State courts the general
practice is to the contrary, and it is common to fill a vacancy
by appointing one of the associate justices.
Popular election and life tenure cannot well go together. The
chance of an irremediable mistake is too great. Judicial
nominations are often the mere incident of the prevalence in a
party convention of one faction of the delegates, whose main
object is to control the nominations for other positions.
American experience seems to indicate life tenure and executive
nomination, with some suitable provision for securing retirement
at a certain age, as likely to secure the best judges of the
higher courts. This has worked well for the United States, and
no State courts have stood higher in the general opinion of the
bar than those thus organized. For the lower courts there is
less necessity and less chance for getting men of the first rank
in attainments and character. Shorter terms of office can
therefore reasonably be prescribed, and the objections to popular
election are correspondingly less. Even as to them, however, the
plan of executive nomination is safer than that of party
nomination. A man acts carefully when he is the only one whom
the public can hold responsible for what is done.
It is customary to provide that vacancies in judicial offices can
be temporarily filled by the Executive until there is an
opportunity for a new appointment or election by the proper
authority.
The place of a judge who is absent or disqualified is in some
States, by authority of a statute or agreement of the parties,
occasionally taken by a member of the bar called in to try a
particular cause or hold a particular term of court.[Footnote:
See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg
_v._ Brown, 32 Connecticut Reports, 112.] So the English
assize judges are constituted by special commissions for each
circuit, which include also the barristers on the circuit who are
sergeants at law, king's counsel, or holders of patents of
precedence.
It is hard to dislodge a judge for misconduct or inefficiency.
Our Constitutions give remedies by impeachment or by removal by
the Governor on address of the legislature, but lengthy
proceedings are generally necessary to obtain the benefit of
them, and the decision is often in favor of the judge. Party
feeling is apt to have its influence in such matters. Whether it
does or does not, it is an unpleasant task to assume the
initiative. Those who best know the facts are the lawyers, and
if some of them are the ones to move, it is at the risk, should
they fail, of having afterwards to conduct causes in a court
presided over by one who is not likely to regard them with a
friendly eye.
The number of judicial impeachments in the history of the country
has been comparatively small, and few of these have resulted in
convictions.[Footnote: See Chap. III.] Of the cases which were
successful, the most noteworthy is that of Justice George
G. Barnard of the Supreme Court of New York, who was convicted of
having abused his right to issue _ex parte_ orders and of
other measures of improper favoritism. The Bar Association of
the City of New York brought the charges, and were influential in
carrying the whole proceeding through to a favorable result. In
another instance, occurring in 1854 in Massachusetts, the right
of impeachment was stretched to its limit by removing a Judge of
Probate, Edward G. Loring, the only real ground being that as a
United States Commissioner he had ordered the return of a
fugitive slave under the laws of the United States--laws the
constitutionality of which the highest court of the State had
recently declared to be fully settled.[Footnote: Sims' Case, 7
Cushing's Reports, 285.]
Judges of inferior courts are sometimes removable by the higher
ones for cause, on complaint of a public prosecutor. In such
case, the proceeding being strictly a judicial one, there is more
assurance of success if the charges are well founded. Here also,
however, it will be known from whom they come, and the hearings
are likely to be so protracted and expensive to the State that
only a flagrant case will usually be taken up. The hearings on
such a complaint, brought in New York in 1903, extended over
thirty-six days; the stenographic minutes of the testimony
covered over 3,300 pages; there were over four hundred exhibits
introduced; and the items of cost presented for taxation amounted
to over $20,000.
Removals by the Governor on the address of the legislature have
been more frequent, and occasionally have been dictated largely
by party managers who desired to make places for those of their
own political faith.[Footnote: Schouler, "Constitutional
Studies," 288, note.] In one instance it was attempted, but
unsuccessfully, in Kentucky as a punishment for giving a judicial
opinion that a stay-law recently passed by the legislature was
unconstitutional. A two-thirds vote of each house was required,
and as in the lower house, though it voted for an address by a
large majority, this could not be obtained, the proceeding was
allowed to drop.[Footnote: Niles' Register, XXII, 266. See
_ante_ p. 114.] In all there have been in the whole country
since 1776 not over thirty removals, whether on impeachment and
conviction or on address of the two houses, of judges of a higher
grade than justices of the peace.[Footnote: See Foster,
"Commentaries on the Constitution of the United States,"
Appendix, 633.]
Wholesale removals have also, in rare instances, been effected
for similar purposes by abolishing courts, the judges of which
held during good behavior.[Footnote: See Chap. VII.] Maryland
was the first to do this, abolishing a court and re-establishing
it at the same session, almost in the words of the former law.
Congress followed in 1802 by repealing the statute of the year
before by which a new scheme of Circuit Courts was arranged and
under which sixteen Federalists had been appointed to the bench.
Massachusetts did the same thing in 1811 with respect to her
Courts of Common Pleas.[Footnote: See Chap. VIII.]
The occurrence of vacancies has sometimes been prevented in a
similar manner when the nominating or appointing authority was
politically opposed to the legislature. The existence of a
supreme court is required by all our Constitutions, but the
number of the judges is frequently left to be fixed from time to
time by statute. The Federalists, when they were about to go out
of power, provided that the Supreme Court of the United States
should on the next vacancy be reduced from six to five, thus
seeking to prevent Jefferson from filling such vacancy. By 1863
the number had been raised to ten, but three years later, when a
Democratic President was contending with a Republican Congress,
it was enacted that as vacancies might occur it should be reduced
to seven. In 1869, when a Republican President had come in, the
number was restored to nine, and the new justice for whom a place
was thus made shortly joined in reversing a decision made by the
court not long before and quite unsatisfactory to the majority in
Congress on an important constitutional point. Similar
legislation, for like reasons, has been had in many of the
States.
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