pose out of all his judicial decisions; would carry all of them, as far as he found practicable, by irregular appeal before a public opinion wholly incompetent, for want of having heard the case, or from having heard it without either the precautions or the impartiality belonging to judicial hearing; would play upon popular passion and prejudice where they existed, and take pains to arouse them where they did not. And in this, if the case were interesting, and he took sufficient trouble, he would infallibly be successful, unless the judge or his friends descended into the arena, and made equally powerful appeals on the other side. Judges would end by feeling that they risked their office upon every decision they gave in a case susceptible of general interest, and that it was less essential for them to consider what decision was just, than what would be most applauded by the public, or would least admit of insidious misrepresentation.

He thus presents the pith of the whole question:

The question however, is whether in the peculiar position of a judge and supposing that all practicable securities have been taken for an honest appointment, irresponsibility, except to his own and the public conscience, has not on the whole less tendency to pervert his conduct than responsibility to the government or to a popular vote.

To resort to judicial recall would be to flee to evils that we know not of. How many persons have tried to imagine what would be the procedure under such a system and how unlikely it is that a judge would be recalled upon the real issue? It would be unfortunate to have more questions thrust upon the people for determination when they already vote upon too large a number. Some critics of the bench think that the judges have become policy-determining officials. If so, recall would be no remedy. I have tried to point out some feasible methods which would avoid anything so ruinous as the recall of judges. If we set about it in earnest we can readily make impeachment or removability for cause such vital procedures in the elimination of improper judges that there will be no occasion for the recall.

(156)

DISCUSSION OF THE SELECTION AND REMOVAL OF JUDGES'

RICHARD S. CHILDS, Secretary of the Short Ballot Organization:

As secretary of the Short Ballot Organization I have, of course been obliged to consider with great care the question of whether in the process of shortening the ballot and transferring minor elective offices to the appointive list, the judges also should be made appointive. The working rule which we use is this: When a given office is on the elective list, does it normally attract sufficient scrutiny to protect it from contamination? There is no question as to whether the people ought to look more sharply at these offices. The question is, after two generations of trial, do they look sharply enough at the candidates for these offices to compel good nominations? We know that in the case of conspicuous officers like the governor or mayor, public scrutiny compels the politician to nominate better candidates than he wants to, better candidates than he does nominate for minor offices where he has his own way.

Does it work this way with judges? I think not. I offer as a fair demonstration the case of the so-called judiciary nominators in New York city, who put a ticket of judges in the field a few years ago when the number of judges to be elected was unusually large and when such leadership as this should have been much in demand. The judiciary nominators put up a first-class ticket and practically the only votes received by their candidates were those secured through the endorsement of other parties. In spite of heavy advertising, in spite of a splendid ticket, they were unable to make a dent in the public consciousness in the matter of judicial nominations. An adverse report made by a bar association on a given nomination makes absurdly little difference in the election, and the report is forgotten in two days. My present audience, cultured and

1 At the meeting of the Academy of Political Science, October 25, 1912.

intelligent as it is, contains only a small percentage of citizens who can name, to say nothing of describing, the judicial candidates of the several parties at the coming election. The average 'citizen does not know what judicial offices are to be filled or who the candidates are.

The experiment of having judges on the elective list has therefore failed, inasmuch as it has led in practise to control by professional politicians rather than control by the people. The judges, therefore, must be taken off the elective list and made appointive by the people's governor, in order to bring their selection under popular control. The average radical will froth at the mouth at this suggestion, but he is wrong and I am right, the appointive way insures closer popular control than direct election does. Taft, Wilson and Roosevelt are

*all frankly in favor of the appointive rather than the elective

method.

Current popular discussion regarding the judiciary makes propaganda work for an appointive judiciary seem hopeless, and the short-ballot movement is contenting itself for the present with placing emphasis on the desirability of the selection of minor administrative officers by appointment instead of election.

There are two things that can be urged, I think, as hopeful compromises. There are two classes of judges, those who are expected to legislate and those who are not. The former are considered policy-determining officers, and in the minds of many people, should be kept elective, at least until the evolution of something like the recall of decisions diminishes their policy-determining authority. There can be no argument, however, about the non-legislating judges and magistrates, and the popular opposition to putting the New York city magistrates on the elective list, as proposed by the Sullivan bill of two years ago, shows that there is a possibility of getting popular support in making this class of judges appointive and taking them out of the hands of our present ruling class, the politicians. Another line of advance lies in the following suggestion. Let judges have a separate non-partisan column on the ballot. Impose upon the governor the duty of selecting a complete list

of judicial candidates six weeks before the election and allow three weeks after that during which counter nominations may be made by petition by such voters as find reason for dissatisfaction with the governor's nomination, all the candidates' names to appear without the party label, except that opposite the governor's selections shall be the words, "recommended by the governor." This would have all the appearance of popular election, would give the people perfectly fair opportunity to nominate and elect when they felt it necessary to correct the governor and, without taking away any of the "privilege" of direct election of judges, would bring about practically an appointive system.

EVERETT P. WHEELER, New York city: The method of judicial appointments is of great practical importance.

A lawyer in good practise who has the confidence of his clients is measurably satisfied with his position and is not going to a caucus to get a political nomination, so he stays out. On the other hand, a governor who knows his duty will search for the best men. I have had extended experience, and I know you can get first-rate lawyers to take nominations for the bench if you seek them out, but they will not go into a campaign. It is perfectly true, as the last speaker said, that the average voter pays very little attention to his judiciary ticket. Years ago when Croker was the leader of Tammany, he took offense at Joseph F. Daly, who refused to vote for apportioning judicial sales to some of Croker's friends. Croker had influence enough to prevent Daly's renomination. A few of us independents, in coöperation with the Republicans, nominated a ticket with three candidates, Mr. Daly, a Roman Catholic, Mr. Taft, the President's brother, a Protestant, and Mr. William N. Cohen, who had been on the bench temporarily, a Hebrew, and one of our very best lawyers. There was a representative ticket, a Roman Catholic, a Jew and a Protestant, all of them men of the first rank in their profession. And yet with all the campaigning we could do, and all the energy we could put into the fight, we lost that election. Had that been a matter of judicial selection there is no question that any governor would

have been disgraced to refuse to appoint these men as against those that were elected.

Then again, since we are dealing with facts, pray allow a witness to speak from personal observation. I have been practising for fifty years at the bar, about half that time in the federal and half in state courts. I say without fear of contradiction that on the whole the judges of the federal court are superior men and do more work than the judges of the state courts. I do not say there are not many men on the bench in the state courts who are the peers of the federal judges. But take them altogether they are distinctly inferior, and I think any lawyer with the same amount of experience will agree with me in this. The judges in the federal courts are appointed by the President to serve during good behavior.

So much for the method of judicial appointment. As to the judicial recall, permit me to say as a result of my endeavor to keep in touch with the plain people, that it is my belief that the great majority of the plain people have no such distrust of the judges as has been assumed. You look at a storm on the sea, and think the whole body of water is convulsed, but this is not so; it is only the surface; below the surface it is calm. The sentiment expressed and described in Mary Antin's remarkable book, The Promised Land, is just and true; our people love their country, are proud of their institutions, satisfied that more than any others they permit the prosperity of hard-working industrious men. These are the men for whom government is formed and they prosper under it, and it is essential that the rights of the individual should be protected against the tyranny or corruption of a temporary legislature. We have experienced that. In the old Georgia case there was offer of proof that a legislature was bribed; the court said it could not look into it, but the fact was undoubted. There have been legislatures in my time that have passed acts for money consideration. The Senate of the United States found that the legislature of Illinois was bribed to elect Lorimer. It is to guard against such abuses that our constitution provides certain limitations to the power of the legislature. For the judge to have the decision recalled is to destroy his self