Is it safe to leave the selection of judges to campaign committees or to party bosses?
Recently, the boss of New York city declined to renominate for the Supreme Court a judge who had served upon the bench with honor and efficiency for twenty-eight years. The reason given was that the judge had “refused to recognize his obligations to Tammany Hall.”
In the election of November, 1897, the candidates for the highest judicial office in the state of New York, — the chief justiceship of the Court of Appeals, — upon the Republican and the regular Democratic tickets, were named by the state committees of their respective parties. Apparently the people were not consulted. No nominating convention was held, and all the people had to do was to ratify at the polls the choice of their party leaders. To these leaders, this method has other advantages besides its simplicity and directness. Being irresponsible and uncontrolled, they are able the more easily to exact from the candidate a campaign contribution in proportion to the office conferred. In a recent election, Tammany Hall received, “for the purpose of advancing the cause of the Democratic party,” the sum of $5000 from its candidate for the office of justice of the City Court, and the sum of $8830 from its candidate for the office of justice of the Supreme Court. Both of these candidates were elected. In their position upon the bench, will they be able to forget or disregard the circumstances under which they were selected? Will they, nevertheless, be independent, impartial, and fearless? Will they, none the less, retain the traditional respect and affection of the people?
These questions involve the integrity of the courts, and hence the foundations of our social and political system. They should not be answered, therefore, without deliberation and investigation. How has this control of the judiciary by party bosses and campaign committees arisen, and to what extent does it prevail? It is a comparatively modern outgrowth of the system of selecting judges by popular election, and is a radical departure from the method provided by the founders of our general government.
In the Constitutional Convention of 1787, the selection of the judiciary was deemed fundamental and far-reaching, and was considered with corresponding seriousness and candor. For a long time it presented many puzzling aspects, although suggestions were not lacking. In the plan or outline of government presented, at the opening of the Convention, by Edmund Randolph, the national judges were to be chosen by the national legislature as a whole. But this idea received little encouragement, since the Convention at once assented to the objection raised by Wilson and Madison, that such a large body as the national legislature would hardly be able to perform so important a function without intrigue, partiality, and concealment.
A like objection was made to the selection of these judges by the Senate or smaller and more dignified branch of the national legislature, as was proposed in the scheme subsequently presented to the Convention by Charles Pinckney. Public bodies, argued Wilson and Gorham with much force, feel no personal responsibility. These statesmen favored the only other alternative presented, — the proposal of Patterson, — the appointment of the national judges by the national Executive, because they thought it would centre the responsibility for the selection. Wilson urged that such appointment by the Executive should be uncontrolled; but Gorham argued that it should be “by and with the advice and consent of the Senate.” A similar practice had prevailed in Massachusetts for a hundred and forty years, a fact that had great force as a precedent. At first, however, the Convention hesitated, and Pinckney’s plan of election by the Senate found more favor. It was supported by Luther Martin, Bedford, Sherman, Ellsworth, and Randolph, and was even agreed to, — the Southern States with Connecticut outvoting the three great commonwealths, Massachusetts, Pennsylvania, and Virginia. Thus the smaller states aimed to check the threatened supremacy of the larger, by increasing the influence of the Senate, in which all the states were to be equally represented.
Evidently, this vote was effected more through jealousy than by argument. It was not accepted as final, and the struggle was soon renewed. In the hope yet of maintaining their point through a compromise, Randolph proposed that personal responsibility be secured by requiring the vote of each Senator, in the election of judges, to be registered on the official journal; and Ellsworth was willing to concede a negative in the executive upon the election by the Senate, provided the latter could override such veto by a two-thirds vote. But these overtures were stoutly resisted. Gorham insisted upon the wisdom of his suggestion, and he gradually gained to his support Wilson, Madison, Gouverneur Morris, Sherman, and Randolph. The Convention reconsidered its vote, and finally followed the Massachusetts precedent. From that time to the present the national judiciary have been appointed by the President, by and with the advice and consent of the Senate; and the system in practice has fulfilled the hopes and testified to the wisdom of its founders. As a rule, the judges of the United States courts have been learned in the law, and independent, fearless, and impartial in its interpretation. Their decisions have uniformly commanded obedience and respect within their jurisdiction, and have exercised a constantly increasing influence upon the courts and jurisprudence of foreign nations.
Nevertheless, this is not the mode of selecting judges now generally prevalent in the judicial systems of the several states. As the states in conventions modified their constitutions into conformity with the new general government, a few did, indeed, follow the precedent established in 1787. Thus appointment by the Executive became the law of Pennsylvania in 1790, of Delaware and Kentucky in 1792, of Louisiana in 1812, of Indiana in 1816, of Maine and Missouri in 1820, and of New York in 1821. But the majority of the old states and nearly all of the new ignored the Massachusetts principle, and adopted the Virginia practice, — the election of judges by the legislature. This method—the one urged in vain upon the Convention of 1787 by Edmund Randolph—had been used by Virginia, Connecticut, New Jersey, the Carolinas, and Georgia in the Colonial era, and was retained by them under statehood. It became the law of Vermont in 1793, of Ohio in 1802, of Mississippi in 1817, of Illinois in 1818, of Alabama in 1819, of Arkansas in 1836, and of Florida in 1838.
During the eighteenth century, these two plans, derived from Massachusetts and Virginia respectively, were the only ones adopted in the United States for the selection of judges. Such was the strength of Colonial precedent and the prevalence of conservative sentiment. During the supremacy of the Federalist party, the principle became firmly established throughout the United States that only through an indirect selection of judges—by the governor, with or without the consent of the Council or of the Senate, or by the legislature—could the people secure their rights and liberties under an independent and impartial administration of the law. A suggestion—had any one presumed to make it—that judges be elected directly by the people would have been stoutly resisted. It would have been deemed a menace to the integrity of the courts and to the fundamental principles of republican government.
Nevertheless, after the accession to power of Jefferson and his party, at the beginning of the present century, such a suggestion was soon made, and in various ways was persistently promoted. It appeared at first as an incident and a consequence of the propaganda of democracy. In the election of 1801, the party of Jefferson secured control of the executive and legislative branches of the general government; but it acquired no immediate influence over the national judiciary. This department, under the Constitution, was not directly affected by the shifting tides of popular election. In fact, the Federalists had taken pains to postpone as long as possible the appointment of anti-Federalists to the national judiciary. At the very end of their rule, they had endeavored, by creating new circuit courts and filling them with judges of Federalistic sympathies, to anticipate the growth of litigation, and to perpetuate the Federalistic development of the law.
At this situation Jefferson and his fellow Republicans were greatly exasperated. “They have retired into the judiciary as a stronghold,” said Jefferson. “The nation declared its will by dismissing functionaries of one principle and electing those of another in the two branches, executive and legislative, submitted to their election. Over the judiciary department the Constitution has deprived them of their control.”
To the Jeffersonians, therefore, the traditional system of appointment for the selection of judges, preventing as it did their complete triumph, took on the aspect of a wrongful limitation of the power of the popular majority, and of a serious defect in the Constitution. To the correction of this evil and to the conquest of the judiciary they now bent their energy. They would gladly have made the attempt to accomplish this purpose by substituting a system of popular election through an amendment of the Constitution of the United States. But such an attempt did not promise success. Even had such an amendment been approved by the people, its adoption would have been difficult owing to the complicated political processes prescribed for its enactment. Since in addition it would have met the determined opposition of the Federalist party and the conservative temper of the people, it could hardly have prevailed.
Without attempting, therefore, to alter the method of selecting the national judiciary, they determined to accomplish their purpose more directly by unseating the obnoxious judges themselves through the coöperation of the Executive with the party majority in Congress. They first attacked the newly established circuit courts. Jefferson, in his first message, suggested that the Federalist measure creating these courts be repealed, on the ground that they were not required by the existing volume of litigation. His suggestion and his excuse were at once adopted by his followers in Congress; and their introduction of a bill for that purpose led to the first great struggle over the judiciary. The repeal was stoutly resisted by the Federalists, as an unconstitutional attempt to remove the national judges. But the Jeffersonians made light of the constitutional objection, and finally carried the repeal, though by only a small majority. Thus by one stroke they cut off all the circuit judges.
The crusade next took the form of impeachment. In Pennsylvania, — a strong anti-Federalist state, in January, 1803, with the aid of the district attorney, Alexander J. Dallas, and the governor, Thomas McKean, the legislature entertained articles of impeachment against Judge Addison of the Court of Common Pleas and removed him from office. Jefferson himself urged on the attack. In February of the same year, in a special message to the national House of Representatives, he presented complaints against Judge Pickering of the United States Court for the district of New Hampshire, intimating that the Constitution had confided in the House of Representatives “a power of instituting proceedings of redress.” Taking this cue, the House promptly preferred articles of impeachment before the bar of the Senate; and though it transpired at the trial that the accused was insane, and hence not a fit subject for judicial process, still such was the party discipline that all objections were overborne and he was removed from office.
Made bold by these successes, they now prepared to attack the Supreme Court itself. One of its members, Samuel Chase, of Maryland, had made himself particularly obnoxious by his overbearing manners and his devotion to Federalism. In May, 1803, in an address to the grand jury at Baltimore, he still further invited an attack by denouncing openly and severely the course of the Republican majority in Congress. The latter seized the opportunity. They arraigned Justice Chase before the bar of the Senate, and hoped by his impeachment to break down the independence of the courts. Few incidents in American history exceed this in dramatic interest. The Senate Chamber was transformed into a court-room, with crimson benches for the Senators and a raised seat for the presiding officer. The scene recalled the trial of Warren Hastings in the House of Lords, ten years before, and the chief actors were no less conspicuous. The presiding officer was the unscrupulous and inscrutable Aaron Burr, who, though Vice-President of the United States, had lately stained his hands with the blood of Alexander Hamilton. The chief prosecutor was the eccentric John Randolph of Roanoke, then but thirty-one years of age, and already the acknowledged leader of the House; while the chief counsel for the defense was Luther Martin, the brilliant but erratic leader of the Maryland bar.
In the issues raised and the consequences entailed, this trial was even more remarkable. As a court of impeachment, the Senate had for its guidance no binding legal precedents and no rules of procedure. Nor did Randolph and his associates prove ready or capable guides. Their charges themselves set forth little more than errors of judgment or infirmities of temper. When subjected to the keen analysis of the defendant’s counsel, they revealed no misdemeanor known to law nor any cause for impeachment. Even the party refused to sustain them. The attempt ignominiously failed, and the integrity of the courts was saved. Henceforth it was tacitly acknowledged that impeachment was an impracticable method for the promotion of party supremacy.
Nevertheless, the struggle kindled a deep distrust of the courts in the rank and file of the Jeffersonians. They deemed the system of appointment in the selection of judges to be inconsistent with what Jefferson called “a jealous care of the right of election by the people.” Hence they did not cease the agitation; they turned it into a new channel. Having found the national judiciary impregnable, they now attacked the state courts. In many of the states they already controlled the legislative and executive departments and dominated public sentiment. In the states, therefore, they were able gradually to extend the principle of popular election to the selection of judges by amending the state constitutions. They also took care to incorporate that principle into the constitutions of the new states as they were successively received into the Union.
At first this movement advanced slowly. Arising in Ohio in 1802, it spread into Georgia in 1812, Indiana in 1816, and New York in 1826. For many years it was confined, as in the ease of Ohio, to the selection of inferior judges. But in 1832 Mississippi, discarding election by the legislature, boldly adopted election by the people for the selection of her entire judiciary; and she was soon followed by the great state of New York. In 1846 New York reorganized her judicial system. Commissioners were appointed to revise and simplify the rules and practice of the courts, and the selection of all judges was taken from the governor and intrusted to the people. Thereupon the movement was greatly accelerated. During the ensuing twenty years it spread into many of the older states by amendments to their constitutions, and it became part of the judicial system of every state that was newly organized. Prior to 1802, in no state had a judge been elected by the people; in 1866, of the thirty-six states that constituted the Union nearly two thirds selected their judges by popular vote.
Nevertheless, the movement did not spread without serious checks, especially in the more conservative communities. In Massachusetts, for example, in the Constitutional Convention of 1853, the Democratic element, under the lead of Benjamin F. Butler, persistently urged the popular election of judges. They were stoutly resisted by the ablest thinkers and debaters of the Convention, including Richard Henry Dana, Joel Parker, Simon Greenleaf, and Rufus Choate. Though at first defeated, the effort was repeatedly renewed, and was finally successful. The principle of popular election was adopted by the Convention. When, however, its recommendations were submitted to popular discussion, the struggle was renewed upon the stump, and the innovation was rejected by the popular vote. Massachusetts has faithfully adhered to her traditional and well-tried policy of selecting her judges by appointment.
Again, shortly after the suppression of the Rebellion, under the influence of Congress and of Federal precedent, there occurred a marked reaction in favor of the principle of appointment. This is to be observed in the constitutions framed in 1868 under the so-called reconstruction acts of Congress, in Georgia, Florida, Mississippi, Louisiana, Texas, and Arkansas. But the reaction was confined to these extreme Southern States, and in only one of them—Mississippi—has it been maintained. The others have steadily drifted into the selection of all their judges by popular vote, and this is to-day the practice of every other Western state. In short, of the forty-five states that now comprise the United States, in five the higher judges are elected by the legislature, in seven they are appointed by the governor by and with the advice and consent of the Council or Senate, while in thirty-three they are elected by popular vote.
Thus the people have more and more taken to themselves the immediate selection of their magistrates. Popular representatives assembled in convention have framed constitutional amendments, which have been ratified at the polls by the people themselves. That the movement has been steady and decided is to be seen from the experience of the state of New York. As has been shown, this state in 1846 superseded its system of appointment by that of election. After a trial of twenty-seven years, when asked in 1873 again to indicate the preference between the two methods, the people voted by nearly three to one for the election of judges by popular vote.
Another quarter of a century has passed, and now for fifty years in New York the courts have been connected with popular elections. How has this association affected them? One effect is certain. As a rule, it has made the judge a prominent and active member of a political organization; in other words, a partisan in politics. A partisan he must be to obtain the office, and a partisan he must be to keep it. The office of judge, like the other offices filled by popular vote, is subject to the conditions of popular elections; and these are in the exclusive control of the political parties. The nomination is made and the campaign is waged by them and for their benefit. The fact that now and then one party is compelled, by an emphatic demand of the public, the bench, 9 or the bar, to accept as its candidate for judicial office the nominee of another party is an exception that proves the rule. Such a concession is made only through compulsion. It weakens the party as an organization. It gives over to the enemy one of the offices or strongholds, the possession of which increases the party discipline, influence, and power. If a political party is to exist and prevail, it needs every office within its gift, to bestow upon its adherents; either to reward distinguished service, to strengthen wavering allegiance, or to secure a generous campaign contribution. That the office of judge has proved to be no exception to this rule is seen from the examples cited at the beginning of this article. They are not the only ones. Thanks to recent state laws requiring sworn statements of campaign expenses by candidates for office, the facts are now open to the public. In New York, since the passage of such a law in 1890, Tammany Hall received, in 1890, $10,000 from its candidate for the Superior Court of the City of New York; in 1891, $6500 from its candidate for the Supreme Court, and $10,000 from its candidate for the Court of Common Pleas; in 1893, $5000 from its candidate for the Court of Common Pleas; in 1895, $5000 from its candidate for the Court of General Sessions, and $5000 from its candidate for the Supreme Court.
The contribution need not be called the purchase price of the office. It is enough to state that its payment is evidently obligatory upon the candidate by reason of his acceptance of the nomination. Being under obligation to his party for one of its most honored gifts, he manifests his gratitude by becoming one of its most generous supporters. Even in office his zeal does not flag. He participates in party councils and takes the stump in political campaigns. The faithful servant and generous supporter of his party, he is rewarded with a renomination at the end of his term.
Meanwhile, in the community where he is prominent as a politician, he also sits as a judge. In the interpretation of the law and in the trial of causes he may have to decide between the very men, as litigants or attorneys, with whom he is associated or to whom he is opposed, in the arena of politics. Possibly the cause brought before him has itself arisen out of, or is involved with, the political questions that agitate his community and receive the support or opposition of his party. At any moment his record or sympathy as a politician may come into contrast or conflict with his duty as a judge.
Even if his association with politics does not influence his judgment or conduct upon the bench, still it tends to weaken his hold upon public confidence and respect. Normally, the judge is regarded with a feeling of deep respect and of genuine affection; but this feeling is based upon a belief in his impartiality, independence, and fearlessness. By allying himself prominently with one class or party as opposed to another, — especially by participating in party strife and incurring political animosity, — he arouses in the former a hope of favor, and in the latter a fear of disfavor, in his judicial decisions. In both cases his office and function are undermined. The judiciary, while intrusted with preëminent powers, is nevertheless the weakest department of the government. The force and influence of its decisions rest solely upon the credit and respect with which they are received. The judicial mandate loses much of its power if it be believed to come from a political partisan.
An even more subtle and serious danger may arise to the judicial office if, through its association with politics, it be made the agency for declaring or perpetuating some temporary party principle or purpose. In a determination to gain public office and control public policy, a party may not hesitate to compel even the judicial office to its assistance. Thus through the decisions and interpretation of the law would the party seek to justify and perpetuate its measures. The office of the judge would be degraded to the service of party politics. To be sure, under our form of government, it is an important duty and function of the judge to educe and declare the sovereign will of the majority as embodied in our constitutions, state and national; but when once this constitutional will has been determined it should not be modified or controlled by temporary political passion or caprice. Otherwise, we should have a government, not of laws, but of men.
It is not to be inferred that all judges elected by popular vote are corrupt. The evil influence of politics upon the bench has been largely counteracted by professional pride, by conservative public sentiment, and by a critical bar. Lawyers, as a class, are influential in politics, and do not easily submit to the imposition and burden of an incompetent or unworthy judge. They often dictate nominations for the bench. But even with these safeguards the evil is not obviated. It is too subtle. Men of the highest qualifications, intellectual and moral, for judicial office, when chosen under the prevalent system of popular election, can scarcely escape the baleful influences to which that system subjects them. An under-feeling of political obligation, a brooding dread of political decapitation, consciously or unconsciously qualify the judgment and disturb the mind. They at least prevent complete independence and repose. “It is plain,” says Mr. Bryce, “that judges, when sucked into the vortex of politics, must lose dignity, impartiality, and influence.”
In fact, the judiciary cannot escape the harmful power of politics so long as it is subject to popular election. The time has come for the states to return to the system of appointment. It is not contended that thereby all evil political influence would be obviated. Under a system of appointment, the selection of judges may at times be controlled by executive favoritism or by political considerations, but the possibility of such control is reduced to a minimum. The Executive can be held personally and directly responsible for his appointments to judicial office, and any departure from his duty can be rebuked at the polls.
Such a reform would be in harmony with a similar reform now in progress in municipal government. In recent years, in some of our great cities, notably New York and Boston, the method of appointment has been substituted for that of popular election in the selection of heads of departments and other similar officers. Thus we are to-day correcting the excesses to which the principles of democracy and of popular election have been carried. The various functions and factors in local and municipal government are being readjusted with less regard to party passion and advancement, and with more attention to an expeditious, economical, honest, and efficient transaction of the public business.
In this reaction toward better government, let us not neglect the judiciary, the very foundation of the state. The statesmen of 1787 were not old fogies. With deep solicitude and with comprehensive view for the future welfare of the government that they were framing, they established the system of appointment for the selection of judges, and we would do well to follow their example.