The American Judiciary

by Simeon E. Baldwin

During the Civil War Congress passed a conscription law. The Supreme Court of Pennsylvania pronounced it unconstitutional, and advised the issue of a temporary injunction to prevent its enforcement by the officials charged with that function. The term of the Chief Justice was about to expire. The decision had been made by three judges, of whom he was one, against two who dissented. The political party to which he belonged renominated him, but he was defeated at the polls. A motion was soon afterwards made to dissolve the injunction. His successor joined with the former minority in advising that the motion be granted, and on the ground that the Act of Congress was not unconstitutional. The two remaining members of the court adhered to their former opinion.[Footnote: Kneedler v. Lane, 45 Penn. State Reports, 238. See this case reviewed in Pomeroy, "Introduction to the Constitutional Law of the United States," Sec. 479.]

In some States the justices of the Supreme Court select one of their number annually to be Chief Justice for the year ensuing. In several, whenever there is a vacancy, the office falls, as of course, to the justice who has the shortest time to serve. This is a ready way to pass a title about and attach it to as many men as possible in quick succession. Its ostensible defense is that there can be no unfair discrimination and favoritism in such an appointment, and that as the judge whose term has most nearly elapsed will naturally be the one who has served the longest, he will certainly have the advantages of experience. These considerations deserve little weight in view of the sacrifices that such a scheme entails. Unfair discrimination is indeed prevented, but so is a just and proper discrimination. The plan of promoting the senior associate justice when a vacancy occurs is liable to similar objections, though in less degree. He is at least not unlikely to serve for a considerable time.

To be a good Chief Justice requires special gifts. Whoever holds that office should have not only learning and ability, but patience and courtesy in a high degree. He must be methodical in the transaction of business, if the docket of the court is a large one. He should have the art of presiding over its public sessions and disposing of the minor motions which may be made from the bar with dignity and tact. He should be a man who commonly carries his associates with him at its private consultations in support of any doctrine which he is firmly convinced to be the law applicable to the case in hand. He should have the faculty of conciliation. He should know when to yield as well as to insist, in order to secure the best results for his court and for his State. He should be able to write a clear and forcible opinion. The best lawyer in the jurisdiction who may be supposed to have these qualities and will accept the position ought to be at the head of its judiciary. Many have been tempted from the bar by an offer of that place who would have refused the appointment of associate justice. John Marshall was one of these. Chief Justice Parsons of Massachusetts was another. In the Supreme Court of the United States no Chief Justice has ever been appointed from among the associate justices, although a nomination was offered to and declined by Mr. Justice Cushing in 1796. In the State courts the general practice is to the contrary, and it is common to fill a vacancy by appointing one of the associate justices.

Popular election and life tenure cannot well go together. The chance of an irremediable mistake is too great. Judicial nominations are often the mere incident of the prevalence in a party convention of one faction of the delegates, whose main object is to control the nominations for other positions. American experience seems to indicate life tenure and executive nomination, with some suitable provision for securing retirement at a certain age, as likely to secure the best judges of the higher courts. This has worked well for the United States, and no State courts have stood higher in the general opinion of the bar than those thus organized. For the lower courts there is less necessity and less chance for getting men of the first rank in attainments and character. Shorter terms of office can therefore reasonably be prescribed, and the objections to popular election are correspondingly less. Even as to them, however, the plan of executive nomination is safer than that of party nomination. A man acts carefully when he is the only one whom the public can hold responsible for what is done.

It is customary to provide that vacancies in judicial offices can be temporarily filled by the Executive until there is an opportunity for a new appointment or election by the proper authority.

The place of a judge who is absent or disqualified is in some States, by authority of a statute or agreement of the parties, occasionally taken by a member of the bar called in to try a particular cause or hold a particular term of court.[Footnote: See Alabama Code of 1896, Sec. 3838; Reporter's note to Kellogg v. Brown, 32 Connecticut Reports, 112.] So the English assize judges are constituted by special commissions for each circuit, which include also the barristers on the circuit who are sergeants at law, king's counsel, or holders of patents of precedence.

It is hard to dislodge a judge for misconduct or inefficiency. Our Constitutions give remedies by impeachment or by removal by the Governor on address of the legislature, but lengthy proceedings are generally necessary to obtain the benefit of them, and the decision is often in favor of the judge. Party feeling is apt to have its influence in such matters. Whether it does or does not, it is an unpleasant task to assume the initiative. Those who best know the facts are the lawyers, and if some of them are the ones to move, it is at the risk, should they fail, of having afterwards to conduct causes in a court presided over by one who is not likely to regard them with a friendly eye.

The number of judicial impeachments in the history of the country has been comparatively small, and few of these have resulted in convictions.[Footnote: See Chap. III.] Of the cases which were successful, the most noteworthy is that of Justice George G. Barnard of the Supreme Court of New York, who was convicted of having abused his right to issue ex parte orders and of other measures of improper favoritism. The Bar Association of the City of New York brought the charges, and were influential in carrying the whole proceeding through to a favorable result. In another instance, occurring in 1854 in Massachusetts, the right of impeachment was stretched to its limit by removing a Judge of Probate, Edward G. Loring, the only real ground being that as a United States Commissioner he had ordered the return of a fugitive slave under the laws of the United States—laws the constitutionality of which the highest court of the State had recently declared to be fully settled.[Footnote: Sims' Case, 7 Cushing's Reports, 285.]

Judges of inferior courts are sometimes removable by the higher ones for cause, on complaint of a public prosecutor. In such case, the proceeding being strictly a judicial one, there is more assurance of success if the charges are well founded. Here also, however, it will be known from whom they come, and the hearings are likely to be so protracted and expensive to the State that only a flagrant case will usually be taken up. The hearings on such a complaint, brought in New York in 1903, extended over thirty-six days; the stenographic minutes of the testimony covered over 3,300 pages; there were over four hundred exhibits introduced; and the items of cost presented for taxation amounted to over $20,000.

Removals by the Governor on the address of the legislature have been more frequent, and occasionally have been dictated largely by party managers who desired to make places for those of their own political faith.[Footnote: Schouler, "Constitutional Studies," 288, note.] In one instance it was attempted, but unsuccessfully, in Kentucky as a punishment for giving a judicial opinion that a stay-law recently passed by the legislature was unconstitutional. A two-thirds vote of each house was required, and as in the lower house, though it voted for an address by a large majority, this could not be obtained, the proceeding was allowed to drop.[Footnote: Niles' Register, XXII, 266. See ante p. 114.] In all there have been in the whole country since 1776 not over thirty removals, whether on impeachment and conviction or on address of the two houses, of judges of a higher grade than justices of the peace.[Footnote: See Foster, "Commentaries on the Constitution of the United States," Appendix, 633.]