Unpopular government in the United States

by Albert Martin Kales

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.