The Selection and Tenure of Judges (Classic Reprint) (Paperback) | Released: 20 Nov 2018

Excerpt from The Selection and Tenure of Judges

For these reasons. In every country oi' the world. Except in the ('autons of Switzerland and the l'nited States, judges are ap pointed and not elected. With us. In the decade between 13-17 and 1855. When new constitutions were being adopted in many states. A change was made to the elective system. It was not an improve ment. In some states the change was not made. A comparisonbetween the work of the appointed judges and of the elected judges shows that appointment secures in the long run a higher average of experts for the lieneh. The principle of the short ballot, which is much put forward nowadays by reformers, and Which thus far is much inere honored by them in the breach than in the observance. Really limits the election by the people to the chief executive and to legislators. Aml delegates to the elected executive the appointment of all other otlieers. Including the judiciary. The who makes the appointments is properly held responsible to the public for the character of his selections. We have had tauny able judges by popular election. These have owed their prcfct'ment to several circumstances. The cti'ect of the old method of appointment was visible in the working of the new system for a decade or more, and good judges were con tinued bv general actptiescence. In some states, indeed. The premium of l'c t'lectiug judges without colttts't obtained until within recent years. Moreover. Able judges have been nominated often through the iutluence of leading members of the Bar upon the politicians who controlled the nominations. Slircwd political leaders have not ordinarily regarded a judgeship as a political place. Because the otiice has had eomjmratively little patronage. If the nominee has been a man of high quality, conspicuously fit, commanding the support of the professional and intelligent non-partisan totes, it has tended to help the rest of the ticket to success. The instances of great and able judges who have been placed on the llench bv election are instances of the adapta bility of the tuerican people and their genius for making the best ottt ul' bad methods, and are not a Vindication of the system. That has resulted in the promotion to the judicial office of other judges who have itnpaired the authority of the courts by their lack of strength. Clearness, and courage, and who have shown neither a thorough knowledge of the customary law, nor a mustructive faculty in the application of it. Great judges and great courts distinguish between the fundamental and the casual. They make the law to grow not by changing it, but by adapting it. With an understanding of the progress in our civilization. To new social conditions. It is the judges who are not grounded inthe science of the law. And who hate not the broad statesman like yiew that comes front its wide study. That are staggered by narrow precedent and frightened by technical ditliculty. The decisions of courts criticised for a failure to respond to that progress in settled public opinion which should affect the limita tions upon the police Imw'el', or the meaning of due process of law. Hayc generally been rendered by elected courts. L'aradox as it mav scent, the appointed judges are more diset'imiuatingly responsive to the needs of a community and to its settled yieiys than judges chosen directly by the electorate, and this because the executive is better qualified to select greater experts.

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