Unpopular government in the United States

by Albert Martin Kales

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.