Further, if the system of electing judges by those liable to their jurisdiction were adopted, there would be an extensive and, I might add, a most entertaining variety of justice. Judges, who were elected by a "blue" or republican majority, and who were anxious for re-election, would always deliver judgment in favour of the blues. The same thing would happen in the "white" or royalists districts. "Justice has her epochs," Pascal said ironically, and in this case justice would have her districts. It would not be the same in the Alpes-Maritimes as in the Côtes-du-Nord. The Court of Appeal, if it attempted to be impartial, would spend its time sending cases back from a blue district to be revised in a white, and the decisions delivered in a white country to be revised in a blue. There would be judicial and legal anarchy.
—If the bench is not to be inherited, nor bought, nor chosen by the Government, nor elected by the people, by whom is it to be nominated?—
By itself; I see no other solution.
For instance I can suggest one good method, though there may be several. All the doctors of law in France could choose the judges of appeal and the judges of appeal could choose and promote all the judges. This is an aristocratic-democratic scheme on a very broad basis.
Or else the judges alone might choose the judges of appeal, and the judges of appeal might appoint and promote the judges. That is an oligarchical method.
Or again, here is a plan for passing from the system that is, to that which ought to be. For the first time the doctors of law might choose the Cour de Cassation, and it could choose the judges. Afterwards the judges could fill the vacancies in the Cour de Cassation, which would nominate and promote the judges.
The Government would still go on, and continue to nominate the persons eligible to serve as magistrates.
Under all these systems the judges would form an autonomous, self-creative body, dependent upon and responsible to themselves alone, and by reason of their absolute independence, strictly impartial.
—But they would form a caste!—
They would form a caste. I am sorry for it, but it is the case. You will never be well judged until you have a judicial caste, which is neither the Government, nor the world at large. For the Government cannot judge properly when it is both judge and party to the suit. Further, if it be litigious; it will never be out of court. Again, the world at large cannot judge properly, because, in practice, the world at large means the majority, and the majority is a party, and by definition a party can hardly be impartial.