METHODS OF SELECTING AND RETIRING JUDGES
Justice is not administered by an executive head planning how a large
number of employees shall do clerical work or tend machines. Its
ultimate source is in the operation of the mind of the judge upon
certain facts presented to him in a judicial investigation. The power
of the state to preserve order and settle the rights of parties is
subject to be invoked in one way or another, according as the judge’s
mind reacts and operates. Clearly, therefore, the way in which the
minds are selected for this important public duty and the way they are
retired is of the first importance to the due administration of justice.
It may be that in some frontier or sparsely settled rural districts
where extra-legal government does not exist, judges are in a degree
really elected by the people. It may be that in such communities the
electorate does actually pick out that one among the lawyers whom it
wishes to act as judge.
There may be other communities which are well satisfied with the
results obtained by special judicial elections at which the candidates
are nominated by petition only and where the ballot is in form
non-partisan. An analysis of conditions in such communities will
usually show that extra-legal government by politocrats is very weak
or non-existent, and that the power of selecting and retiring judges
really resides in the lawyers, subject only to the approval of the
electorate.
In a metropolitan district, however, where there is a large population
and a governmental plan which reduces the most intelligent inhabitant
to an extreme degree of political ignorance as a voter, and the
establishment of extra-legal government by politocrats is thus secured
and fostered and becomes the real government, the judges, though the
electorate regularly votes to instal them in office, are not in fact
elected at all. They are appointed. The appointing power is lodged with
the politocrats of the extra-legal government. These men appoint the
nominees. They do it openly and with a certain degree of responsibility
under the convention system. They do it less openly and with less
responsibility when primaries are held.
If you wish to test the soundness of these conclusions inquire your way
to a judgeship in such a district or listen to the experiences of the
men who have found their way to a judgeship or have tried to obtain the
office and failed. In almost every case the story is one of preliminary
service to the organization, recognition by the local organization
chief, and through him recognition and appointment of a nomination by
the governing board of the party organization. Those who do not go by
this road do not get in. The voter only selects which of two or three
appointing powers he prefers. Whichever way he votes he merely approves
an appointment by politocrats.
The judges in a metropolitan district where the extra-legal government
rules and where elections for judges are held are not subject
to a recall merely. They are subject to a progressive series of
recalls. They are subject to recall by the politocrats who sit upon
the governing board of the party organization. These may refuse a
nomination at the time of an election. If the judge secures the
nomination he may be recalled by a wing of the organization knifing
him at the polls. He may be, and frequently is, recalled by reason
of an upheaval upon national issues. In the case so rare that it is
difficult for one with a considerable experience at the bar in a city
like Chicago to remember it, a judge is actually recalled because of
popular dissatisfaction with him. If there now be added the recall
by popular vote at any time during the judge’s term, we shall have
presented the politocrats with a continuous hold upon the judge. Their
power may at any time be used to initiate recall proceedings against
him, and the individual without any real popular following will
have but little chance against the tremendous power of a successful
political organization. The recall of a judge by popular vote at any
time will give a like opportunity to a particular faction of the
political organization to attack a judge it does not want. Such a
recall will likewise give to a party which has a chance of sweeping all
before it in a national election an opportunity to initiate a recall
of some at least of the judges of the opposite political party. Of
course, the recall election will also give the electorate at large an
opportunity to retire a judge at once in the rare case where there is a
real popular uprising against him. It does not take any great degree of
intelligence to estimate whether such a recall by popular vote will be
of greater advantage to the extra-legal government by politocrats or to
the electorate at large.
The plain truth is that in a metropolitan district the selection of
judges by some sort of appointing power cannot by any possibility be
avoided. The position of a single judge out of as many as thirty and
upward in a district containing an electorate of a hundred thousand
and over is too hidden and obscure to enable any man who is willing to
occupy the place to secure a popular following. The man who has a real
hold upon a majority of so numerous an electorate will inevitably be
led to a candidacy for governor of the state or senator of the United
States, if not indeed for president of the United States. Another
obstacle to the actual choice of judges by so numerous an electorate
is that the determination of those fit to hold judicial office is
unusually difficult. It would be a problem for a single individual who
had an extensive personal knowledge of the candidates and had observed
them closely for a considerable period in the practice of their
profession. For all but the most exceptional judge in a metropolitan
district the power which places him in office and retires him from
office will be an appointing power, although there be in force the
so-called popular election of judges. So long as extra-legal government
by politocrats is the real government, that appointing power will be
lodged in the politocrats who wield the power of that government.
There are many who sincerely believe that the ideal functioning of the
electorate in a metropolitan district where the extra-legal government
is strong, may be restored if judges are elected only at special
elections where a judicial ballot is used which omits all designation
of parties and upon which the names of candidates are placed by
petition only and the name of each candidate is rotated upon the ballot
so that it will appear an equal number of times in every position. The
object of such legislation is to restore a choice by the electorate
by depriving the extra-legal government of its predominant influence
in judicial elections. The means adopted to deprive the extra-legal
government of its influence is to take from it the use of the party
circle and the party column. It may safely be predicted of such
legislation that it will not cause judges to be the actual choice of
the electorate, nor will it eliminate the influence of the politocrats
in judicial elections.
The supposition is that if the influence of the politocrats can be
eliminated the electorate will necessarily make a real choice. But
the electorate does not fail to choose simply because the politocrat
has taken that choice from it. On the contrary, the politocrat rules
because the electorate regularly goes to the polls too ignorant
politically to make a choice of judges. That ignorance is due to the
fact that the office of judge is inconspicuous and the determination of
who are qualified for the office is unusually difficult, even when an
expert in possession of all the facts makes the choice. The proposed
method of election does not in the least promise to eliminate the
fundamental difficulty of the political ignorance of the electorate.
If, therefore, it succeeded in eliminating the influence of the
extra-legal government the question would still remain: Who would
select and retire the judges? There is no reason to believe that the
electorate would make any real choice. Electors would be just as
politically ignorant as they were before. They would be just as little
fitted for making a choice as they were before. The elimination of
extra-legal government does not give to the electorate at large the
knowledge required to vote intelligently. Who, then, will select and
retire the judges? The newspapers might have a larger influence, but
they would probably be very far from exercising a controlling influence
or uniting in such a way as to advise and direct the majority of the
voters out of an electorate of several hundred thousand how to vote
for a large number of judges. Special cliques would each be too small
to control a choice and combinations would be too difficult to make.
The basis of choice would, therefore, be utterly chaotic. There could
be neither responsibility nor intelligence in the selection of judges.
The results reached would depend upon chance or upon irresponsible and
temporary combinations. With every lawyer allowed to put up his name
by petition and chance largely governing the result, the prospect is
hardly encouraging.
There is no reason to believe, however, that any such disorganized
method of choice would be tolerated. The most potent single power in
elections would end it. That power would be the extra-legal government.
Its organization would be put to greater trouble in advising and
directing the politically ignorant how to vote, because it would have
been deprived of the party circle and party column. But the advice
and direction could and would be given and followed. Each competitor
for the power of the successful extra-legal government would have its
slate of candidates. Each would prepare separate printed lists of
its slate to be distributed at the polls and the voter would for the
most part, as now, take the list of that organization he was loyal to
or feared the most, and vote the names upon it no matter where they
appeared upon the ballot. Thus the appointment and retirement of judges
by the extra-legal government would, after perhaps a period of chaos
and readjustment, again appear. Perhaps it would be even stronger as a
result of reaction and deliverance from the chaotic conditions which it
relieved.
It is impossible to escape the conclusion that in a metropolitan
district with one hundred thousand voters and upward, the selection
of judges by the electorate is practically impossible. It is equally
certain that the judges in such a community must be selected by some
appointing power. The real and only question is: What is the best
method of appointment?
No method could be worse than that which we now employ. Appointment by
the politocrats of the extra-legal government is so obscure, especially
when effected by primaries, that they are under no responsibility
whatever in naming judges and they have little interest in the due
administration of justice. Indeed, the situation is worse than that,
for they may have positive reasons for wishing a type of man from
whom they may expect certain courses of action which will actually be
inimical to the efficient administration of justice, particularly in
criminal causes; or they may be interested in filling judicial offices
with those who have done more in the way of faithful service to the
organization than in the way of practice in the courts.
From time to time, therefore, suggestions have come from members
of the bar of ways and means for reducing the influence of the
appointing power of the politocrats. It has been suggested that the bar
association should be given power to place upon the official ballot
a bar-association ticket upon which might appear candidates who had
been nominated by any of the other political parties. This would give
the candidates approved by the bar association and also by any other
political party considerable advantage over those appearing in only one
party column. To that extent it would throw a greater influence into
the hands of the lawyers. The question, however, has arisen whether
this would result in a greater power in an unbiased bar association to
select good judges, or in the lining-up of lawyers in groups which were
controlled by the leaders of the politocrats. The effort is frequently
made to provide that all judges shall be elected at a special judicial
election. This course may prevent the recall of judges because of an
upheaval on national issues. It does not, however, interfere with the
appointment of a nomination by the politocrats in the first instance.
Even when the nominations are all by petition and the party circle
eliminated and the names of candidates rotated upon the ballot, resort
must still be had to the extra-legal government to escape absolute
chaos and selection by mere chance.
Nothing of great value can be accomplished until it is recognized that
the judges in a metropolitan district are certain to be appointed and
that the only proper appointing power is one which is conspicuous,
legal, subject directly to the electorate, and interested in and
responsible for the due administration of justice.
This principle may be worked out in a variety of ways.
When the state executive as now constituted is given power to appoint
directly, or to appoint indirectly by designating the nominees to be
voted upon, the principle is worked out in one way. There are, no
doubt, serious objections to both methods of executive appointment. The
governor of the state is, of course, in the midst of politics. He is
also in the midst of a legislative program, and the temptation is very
strong to trade judicial places for the progress of administration
measures in the legislature. Then the governor is not particularly
responsible for the administration of justice, that being a matter for
the judicial department rather than the executive. But this much can
be affirmed, that any mode of appointment by the governor, since it is
conspicuous and legal, and since the governor is directly subject to
the electorate, carries with it a measure of responsibility which is
not found where the appointment is secret and by the politocrats of the
extra-legal government. Appointment by the governor is better than the
present misnamed plan of popular election.
It might be suggested that the power of appointment could be lodged in
the highest appellate tribunal of the state, the members of which had
terms of considerable length, but were subject to election. This again
is, no doubt, open to objections. But again, it could not possibly be
a worse method than the one now employed. Judges of such courts are
more easily than governors made responsible for the due administration
of justice. They would have stronger motives than the governor for
appointing men who could best carry on the administration of justice.
No body of men in the state has a better opportunity for determining
the character and ability of lawyers, since they examine the work of
lawyers continually with most minute care.
It has been suggested that vacancies in the judiciary should be filled
by the appointment of the chief justice of the metropolitan district.
He in turn should be chosen by the electorate of the district at fairly
frequent intervals--viz., every four or six years--and in him should be
vested large powers to oversee and direct the mode of organizing and
handling the business of the court.[35]
The objection which will at once be raised to this is that it presents
an opportunity for the politocrats to obtain vast power by securing
control of the chief justice. It is not difficult to demonstrate that
the lodging of the appointing power in the hands of a responsible and
conspicuous chief justice controlled by the politocrats would be much
less inimical to the administration of justice than the appointment
of judges in secret and without responsibility by the politocrats
directly. The chief justice would, of course, only fill vacancies
occurring during his short term. The guaranty to the public that such
vacancies would be filled with fairly efficient men lies in the fact
that enormous responsibility for the due administration of justice
is focused upon a single man. Every complaint of inefficiency and
impropriety comes home to him. Such a man cannot carry on the work
of the court without the most efficient judges that he can possibly
secure. This leads necessarily to procuring as judges members of the
bar who have, in a successful practice in the courts, had a proper
service test. Assuming that such a chief justice were the recognized
deputy of the politocrats he would be driven by the necessities of
the case, by the conspicuousness of his position, and the force
of public opinion, to do his utmost to persuade the politocrats to
permit him to appoint efficient men. That would produce an appointing
power far better than the secret and utterly irresponsible method of
direct appointment by the politocrats which now exists. A much more
desirable result than this, however, is to be expected. Such a chief
justice would be so important and conspicuous an officer and his power
so great, that in his nomination and election the desires of the
electorate as a whole would have to be much more fully considered than
is the case where the politocrats appoint to a nomination and seek the
election of an obscure member of a bench composed of thirty members and
upward.
All fear of the chief justice having too much power and falling too
much under the influence of the politocrats and extra-legal government
may be dissipated by making adequate provision for his retirement. The
chief justice would, of course, be subject to impeachment. He might
also be retired by a legislative recall by a vote of three-fourths of
the members of the legislature after an opportunity for defense and
for cause entered upon the journals,[36] or by the governor upon an
address of both houses of the legislature.[37] The fact that the chief
justice held office only for a short term would in fact subject him
to a recall by popular vote at the end of each period. To this might,
with perfect propriety, be added the recall of the chief justice and
election of his successor by popular vote during the regular term.
Surely such safeguards are ample to protect the electorate from any
abuse of the appointing power conferred upon the chief justice.
A chief justice who is retired at the end of his term by failure to be
re-elected should, however, have the right, if he so chooses, to remain
one of the judges of the court upon the same footing as an appointed
judge and subject to assignment to duty by his successor. This is
proper because the election goes only to the matter of his political
position as the chief justice exercising an appointing power and
administrative powers with respect to the organization of the court
and the way its business is handled. The electorate has nothing to do
with his fitness to decide litigated causes. Furthermore, the fact
that a failure to be re-elected will not send the chief justice back
to the practice of the law, which he has given up, will insure greater
independence on his part while holding office as chief justice. It will
also be an act of fairness to him, since a profession once given up
during six or eight years for a place upon the bench is difficult and
frequently impossible to recover. In addition to this it is best for
the administration of justice itself that ex-chief justices who cannot
regain their position in practice and are pitiful reminders of former
greatness should not be left derelicts at the bar. But if a chief
justice upon failure to be re-elected chooses to take his place as a
judge in the court, he should not be permitted again to be a candidate
for chief justice. It will not do to have in the court the rival of the
sitting chief justice with a motive for making trouble.
The principal objections to the appointment of judges have been that
they necessarily hold for life and become arbitrary and exercise
judicial power in a manner distasteful to the lawyers, their clients,
and a majority of the electorate. It will usually be found on analysis
that the objectionable exercise of judicial power by an appointed judge
is due to the fact that appointment means a life tenure. Hence the real
objection to the appointment of judges as such is that when appointed
they have held office for life. The entire objection, therefore, to
appointment may be met by limiting the tenure of the appointed judge
and by a variety of provisions for his retirement. He would, of course,
be subject to impeachment. He might very well in addition be subject
to some mode of legislative recall such as was proposed for the chief
justice. His term may be limited to five years or seven years, thus
requiring a retirement at the end of each period unless a reappointment
is made. The judge appointed by the chief justice may even be subject
to recall by popular vote according to one or the other, or both, of
two plans. The appointment might be for a probationary period--say
three years--at the end of which time the judge must submit at a
popular election to a vote on the question as to whether the place
which he holds shall be declared vacant. This is not a vote which puts
anyone else in the judge’s place, but a vote which can at most only
leave the place to be filled by the appointing power. Such a plan
must necessarily promote the security of the judge’s tenure if at the
popular election his office be not declared vacant. After surviving
such a probationary period his appointment should continue for--let
us say--six or nine years. At the end of that time the question might
again be submitted as to whether his place should be declared vacant.
If thought necessary further to protect the electorate from the bogey
of an appointed judge, he might be subject to recall at any time upon
the petition of a percentage of the electorate. But this recall, like
the other, should present only the question of whether the judge’s
place should be declared vacant, leaving the vacancy, if created, to
be filled by the appointing power. The danger in the existence of both
these plans of popular recall is that they may be used with more effect
by any extra-legal government of politocrats than by the electorate
at large. It is highly improbable that the electorate would find it
necessary or advisable to use either mode of recall. The presence of
either mode would, therefore, furnish a means whereby an influence of
the politocrats upon the judiciary could be continuously maintained.
It is, however, a grave mistake to suppose that judges exercise
their judicial power in a distasteful and arbitrary manner merely
because they hold for life or during good behavior. An arbitrary or
disagreeable course of action by a judge arises principally from the
fact that he is subject to no authority which can receive complaints
against him and act upon those complaints by way of private or public
criticism and correction of the judge. The best protection against
arbitrary and disagreeable actions by judges is a duly constituted
body of fellow judges who hold a position of superior power and
authority and to whom complaints as to the conduct of judges may
be brought and who may investigate those complaints and exercise
a corrective influence. When a considerable number of judges in a
metropolitan district are provided with a chief justice and organized
for the efficient handling of a great volume of business, the means
of securing the exercise of a corrective influence over their conduct
at once appears. Such a court must be organized into divisions for
the purpose of handling specialized classes of litigation. In a
metropolitan district like Chicago there should be an appellate
division with from six to nine judges sitting in groups of three, a
chancery division of six judges with a corps of masters, a probate and
family relations division with at least four judges and a corps of
masters and assistants, a common-law division with fifteen to eighteen
judges and a corps of masters, and a municipal court division with
thirty-three judges. The chief justice should be the presiding justice
of the appellate division and each of the other divisions should have
a presiding justice with large powers over the way in which the work of
each division is handled. The chief justice and the presiding justices
of divisions should form a judicial council or executive committee,
with considerable powers over the way the court as a whole is run. To
such a judicial council there should be committed the power to remove
from office any judge, other than the chief justice, and to reprove,
either privately or publicly, or transfer any such judge to some other
division of the court for inefficiency, incompetency, neglect of duty,
lack of judicial temperament, or conduct unbecoming a gentleman and a
judge, for the good of the service, or to promote its efficiency. The
power of removal by the council should be exercised only where written
charges have been filed and after an opportunity has been given to the
judge to be heard in his own defense.
The existence of a judicial council composed of the chief justice
and the presiding justices of the different divisions of the court,
each one responsible for the way in which the work of his division
is handled, suggests also a practicable way in which to stimulate
efficiency at the bar, provide a service test for candidates for places
on the bench, and subject the appointing power of the chief justice
to a slight but reasonable control. The judicial council should be
given power to appoint upon an eligible list for each division of
the court twice as many members of the bar as there are judges in
the division. The chief justice, in appointing judges to a place in
any division of the court, should be required to select from this
eligible list on the occasion of every other appointment at least.
The operation of such a plan would be to place in the hands of the
presiding judges of divisions an express authority to suggest what
members of the bar practicing before their divisions respectively would
make satisfactory judges for each division. It would also operate to
stimulate the efforts of lawyers and promote competition to secure
places upon such eligible lists by specialization in practice before
particular divisions. This would develop an expertness in the handling
of litigation which does not now exist on the part of any considerable
number of the bar.
We may then conclude that in a metropolitan district with a hundred
thousand electors and upward judges cannot be elected. They must
be appointed. If an election is attempted it is a failure and
appointment results. The worst method of appointment is the secret
and irresponsible appointment by politocrats. The most promising is
the conspicuous and legal appointment by a chief justice elected at
large in the district at frequent intervals. Every objection to such a
plan and every prejudice against it may be met by provisions for the
retirement of the chief justice and his appointees by impeachment,
by legislative and popular recalls, and by the power of the judicial
council to discipline and remove any judge other than the chief
justice. It is even possible under such a plan to promote efficiency by
securing an eligible list of men whose experience in practice under the
eyes of the judges insures excellence in appointment.
FOOTNOTES:
[35] The following extract from the letter of Mr. Charles H.
Hartshorne, of Jersey City, N.J., to the author dated November 4, 1912,
explains the plan of administering the chancery jurisdiction in New
Jersey: “The constitution of New Jersey provides that ‘The Court of
Chancery shall consist of a Chancellor.’ The Chancellor is appointed
by the Governor with the approval of the Senate, for a term of seven
years. He is usually reappointed, though it is an open question whether
this office is an exception to the custom that judicial officers of the
superior courts shall be reappointed, regardless of their political
affiliations, so long as they are capable of giving efficient service.
That custom has resulted in our having upon the Bench of the higher
courts, judges who have served for very long periods--twenty-five years
and upwards.
“A number of years ago, the work of the Court of Chancery having
become too great for one judge to dispose of, a statute authorized the
appointment by the Chancellor alone (without confirmation by any other
authority) of a Vice-Chancellor, as assistant. By further statutes, the
number of these was increased to seven. The Court now consists of a
Chancellor and seven Vice-Chancellors, who sit separately in different
parts of the State. The Vice-Chancellors are appointed for seven-year
terms. That Bench is generally regarded as the strongest in the State
and has given entire satisfaction to the Bar and to the public.
“The Vice-Chancellors hear interlocutory motions in nearly all cases
under a standing rule of the Court, but they conduct trials and final
hearings only upon an order of reference from the Chancellor. After
trial they write the opinion of the Court, which is usually reported,
and advise the decree, which is then signed by the Chancellor. No
appeal lies from their decree to the Chancellor, but all such decrees
may be appealed directly to the Court of Errors and Appeals.
“Theoretically, the Vice-Chancellors are merely referees who report and
advise the Chancellor, the decree being made by him upon their report.
In actual practice however, they are members of the Court of Chancery,
in fact (but not in form) making the final decree of that Court.
“The system has worked very satisfactorily in respect to the character
and attainments of the members of that Bench, but the work of the Court
in populous cities is a good deal in arrear. This is due to the volume
of business having outgrown the number of Vice-Chancellors.”
[36] Illinois Constitution 1870, Art. VI, sec. 30.
[37] Massachusetts Constitution, chap. iii, Art. I; 38 and 39 Vict.,
Ch. 77 (Jud. Act 1875), sec. 5.