this great change in a fundamental principle of the government. I do not believe any mere majority of the people either by a direct vote or through their representatives should create the judiciary of the State; the minority (for whose benefit this branch is established perhaps more than for any other) should have a decided voice in the matter; they should be heard. And I hope the people will bear in mind the wide and decided distinction between the executive and legislative powers, and the judiciary. A majority elect the legislature and executive; and the reasons for this are very obvious. But a very different mode of selecting the Judges should be adopted. They are as the shield of the minority, to protect from the oppression (if tried) of the majority.

to elect.

MR. PATTERSON. I am not, for one, prepared to say that the The people competent people of this State are incompetent to elect the judges of their courts. I believe that they are as capable of doing this, as of electing a President or Vice-President of the U.S., or a Governor or Lieutenant-Governor of the State of New York, or any other State, I am opposed to having the judiciary a mere political machine; I want to strip the power of appointing the judges at once and entirely, from the executive; and I will not consent that this power, which has been left in the Governor's hand for 25 years, shall be left there any longer.

appoint

ments.

How are these judges appointed at present? The Constitution Politics in truly confers that power on the Governor and Senate; but do they exercise it, in reality? Certainly not. The judges of county courts are not thus appointed. Practically, they are appointed by a caucus; and this is held in the county where the judges are to officiate; the people there get together in a caucus; make nominations for the office of judges, and then send these names in to the Governor. Well, who ever knew a Governor to refuse to send in these very names to the Senate, to be confirmed? And when have we had a Senate that refused to confirm these caucus nominations, sent to them thus through the Governor? When one political party has the executive, then their friends follow this

A political joke on the governor.

The English and American systems compared.

plan, and their men are appointed; and so it is when the other party is in power; they make the caucus nominations, and that is, in reality, an appointment.

I remember the case some years ago in 1834 (I have told the story to another and smaller body than this, and in this city) — some persons got together, in Franklin county and resolved themselves into a Democratic Republican County Convention. Mr. A. B. was made chairman, and Mr. C. D., Secretary; and after a while it was declared unanimously that Messrs. E. F. and G. H. had a majority of all the votes then present at this great county convention, and they were then unanimously recommended therefore to Governor Marcy for nomination to the Senate. The proceedings came down to him headed, "Proceedings of the Democratic Republican County Convention of Franklin," &c., and so on; and Governor Marcy, seeing the words "Democratic Republican," naturally supposed surely they were all right; that was strong enough recommendation, in all conscience, for him; and so he sent in these two names to the Senate, and they were confirmed. And it turned out afterward, upon inquiry, that they had thus appointed a couple of Whigs, instead of a couple of Democrats. (Much laughter.) And this is a practical illustration of the mode of appointing these judges that has been in operation over 20 years.

MR. BASCOM. The present mode of appointment by the Governor and Senate has received too general popular condemnation and has in my judgment been attended with such results as not to justify its continuance. The judgment and feeling not only in the Convention but throughout the State is against it. The idea is fast being abandoned that any portion of the public servants should enjoy independence of the people whose interests they have in charge, whose business they transact, whose rights they protect or disregard. The idea of the necessity of judicial independence in England is entirely different from that conveyed by the use of the term here. In England, the term means an independence of

the crown, and to preserve it the life tenure of the judges was adopted, while here the advocates of judicial independence are the opponents of judicial responsibility to the people. But we require no such independence here, but rather that mode of selection. that shall secure the honest discharge of official duty, by the most direct responsibility.

We have had appointed judges under the present constitution. Appointed judges not How has the system worked? How in your counties, has it been above petty successful in securing the best integrity and ability? Has it even politics. worked well in regard to the judges of your higher tribunals? When was your State more deeply humbled and disgraced, than when the judges of one of your highest courts chaffered on the bench for places of profit within their own power of appointment, when the junior became the chief, when the glitter of small change had greater charms in the eyes of the seniors than the purity of judicial ermine, and they went down to clerks' stools to put lawyers' papers into pigeon holes and keep the dust off them for six cents apiece? These were your appointed judges.

But I have an objection to long terms. I believe as firmly as any one, that in general, this mode of selection would be successful, but it would not always be so. The public ear might be sometimes abused, and incompetent or improper men be placed upon the bench, and I would afford a reasonably frequent opportunity of correcting such mistakes as should be made. Eight or ten years term is proposed by some, but I cannot see the propriety of making the judicial term four or five times as long as the gubernatorial or senatorial term. It would not give the opportunity that ought to be afforded for correcting the mistakes that might be made.

195. Roosevelt on the Recall of Judicial Decisions

In his speech delivered before the Ohio constitutional convention on February 21, 1912, Mr. Roosevelt advanced his plan for the recall of judicial decisions. These extracts are from his speech on this occasion.

The reasons

for short

terms.

The recall

desirable

The question of applying the recall in any shape is one of under certain expediency merely. Each community has a right to try the

circumstances.

The recall of decisions.

experiment for itself in whatever shape it pleases. Under the
conditions set forth in the extract from the letter given above,
I would personally have favored the recall of the judges both in
California and in Missouri; for no damage that could have
been done by the recall would have equaled the damage done to
the community by judges whose conduct had revolted not only
the spirit of justice, but the spirit of common sense.
believe in adopting the recall save as a last resort, when it has
become clearly evident that no other course will achieve the
desired result. But either the recall will have to be adopted or
else it will have to be made much easier than it now is to get
rid, not merely of a bad judge, but of a judge who, however
virtuous, has grown so out of touch with social needs and facts
that he is unfit longer to render good service on the bench. It
is nonsense to say that impeachment meets the difficulty. In
actual practice we have found that impeachment does not work,
that unfit judges stay on the bench in spite of it, and indeed be-
cause of the fact that impeachment is the only remedy that can
be used against them. Where such is the actual fact it is idle
to discuss the theory of the case. Impeachment as a remedy for
the ills of which the people justly complain is a complete failure.
A quicker, a more summary, remedy is needed; some remedy at
least as summary and as drastic as that embodied in the Massa-
chusetts constitution. And whenever it be found in actual
practice that such remedy does not give the needed results, I
would unhesitatingly adopt the recall.

There is one kind of recall in which I very earnestly believe, and the immediate adoption of which I urge. There are sound reasons for being cautious about the recall of a good judge who has rendered an unwise and improper decision. Every public servant, no matter how valuable, and not omitting Washington or Lincoln or Marshall, at times makes mistakes. Therefore we should be cautious about recalling the judge, and we should be

cautious about interfering in any way with the judge in decisions which he makes in the ordinary course as between individuals. But when a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong. We should hold the judiciary in all respect; but it is both absurd and degrading to make a fetish of a judge or of any one else. Abraham Lincoln said, in his first inaugural: "If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the courts or the judges."

view.

Lincoln actually applied in successful fashion the principle of Lincoln's the recall in the Dred Scott case. He denounced the Supreme Court for that iniquitous decision in language much stronger than I have ever used in criticizing any court, and appealed to the people to recall the decision the word "recall" in this connection was not then known, but the phrase exactly describes what he advocated. He was successful, the people took his view, and the decision was practically recalled. It became a dead letter without the need of any constitutional amendment. In any contest to-day where the people stand for justice and the courts do not, the man who supports the courts against the people is untrue to the memory of Lincoln and shows that he is the spiritual heir, not of the men who followed and supported Lincoln, but of the Cotton Whigs who supported Chief Justice Taney and denounced Lincoln for attacking the courts and the Constitution. Under our Federal system the remedy for a wrong such as Abraham Lincoln described is difficult. But the remedy is not difficult in a State. What the Supreme Court of the Nation decides to be law binds both the National and the State courts and all the people within the boundaries of the Nation. But the decision of a State court on a constitutional question should

The state

courts and

the recall.