[34] Ramsay Muir, in Peers and Bureaucrats, has a suggestion for a second chamber that should not be ignored. He finds the evil of a popular chamber containing a large number of representatives from wieldy districts selected by pluralities merely to be that it makes government by party a necessity. The parties tend to form themselves into two great camps, with two great programs. The electorate has been driven to choose one program or the other, though if all shades of opinion could be examined some part of each program would not receive a majority of votes. Party discipline, however, becomes so strict that the first chamber can put through every part of the party program. The real need in the second chamber, he declares, is to secure members of independent views who can express their opinions freely without fear of the loss of their seat as a punishment for having been independent, and which will represent the different shades of opinion on the part of the electorate. He, therefore, advocates the selection of members of the second chamber by the method of proportional representation by the single transferable vote according to the Hare plan.
The difficulty with this proposal is that property interests as such are not represented except according to the numerical strength of property owners. In fact, Mr. Muir expressly repudiates any idea of creating a second chamber based upon an aristocracy or the middle class of income taxpayers. His plan might also be expected to involve a contest as to which chamber really represented the electorate. The second chamber as proposed by Mr. Muir would certainly be a “rival infallibility” and hopeless deadlocks might be expected. There would then be the usual American spectacle of bickering between the executive as represented by the executive council or cabinet of the first chamber, and the second chamber representing the electorate. On the whole the union of the executive and the legislative powers so much to be desired would be broken in upon.
CHAPTER XVII
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.