Qualification of Judges.
The peculiar functions of courts of justice are such as to require that the judges should possess in a special degree learning, impartiality, integrity, dignity, and independence of judgment. “Whatever,” said Edmund Burke in his “Reflections on the French Revolution,” is supreme in a state, it ought to have, as much as possible, its judicial authority so constituted as not to depend upon it, but in some sort to balance it. It ought to give security to its justice against its power it ought to make its judicature, as it were, something exterior to the state. If the judges lack wisdom, probity, and freedom of decision, the high purposes for which the judiciary is established cannot be realized. The existence of these necessary qualities depends in large measure upon the method by Which, the judges are selected, the length of their tenure, and their freedom from control on the part of those who choose them.
Choice of the Judges: Election by the Legislature.
The existing methods by which judges are chosen in the different states of the world are the following:
(a) Election by the legislature.
(b) Election by the people.
(c) Appointment by the executive.
either absolutely or from a list of nominees presented by the courts, or with the concurrence of an executive council or the Upper chamber of the legislature. Choice by the legislature has not commended itself generally to statesmen because it renders the judiciary to certain extent dependent upon a coordinate department of the government, in violation of the principle of the separation of powers. Furthermore, the system of legislative choice usually means, at least in the United States, nomination by a party caucus and often a parceling out of judicial positions among the political divisions of the state with reference to geographical considerations rather than fitness for the judicial office. In short, as a great jurist has pointed out, it presents “too many occasions and mommy temptations for intrigue, party prejudice, and local interest to secure a judiciary best calculated to promote the ends .of justice.” Choice by the legislature was a favorite method of selection in the American states for a time after the Revolution, ‘a circumstance due to the prevailing jealousy of the executive on the one hand and the distrust of popular election on the other. This system, however, has been abandoned in all the American states but four,97 and is not followed in any European country except Switzerland, where the judges of the federal tribunal are chosen by the legislative assembly of the Confederation.
Election by the People
The system of popular election of judges was first introduced in France in 1790, for the reason that it was the system most conformable to the theories of popular sovereignty and the separation of powers, two theories which dominated the political thought of the French Revolutionists. In the first elections which took place after the adoption of the system, the results were not disappointing, and a good many able and eminent judges were elected although only about one sixth of the voters participated in the election. With the establishment of the republic, however, in 1792 and the ascendancy of the radical party to power the judges elected in 1790 fell under suspicious, they were denounced as aristocrats hostile to the print of the Revolution, “purging” of the judiciary was demanded, and new elections were ordered by the National Assembly before the expiration of the terms of the judges who had been elected in 1790.
The results of the elections which took place in 1793 were deplorable hardly any of the distinguished sitting magistrates were reelected only a few of those who were elected were lawyers and among those who were chosen were engravers, stone cutters, clerks, gardeners, and common laborers. The public confidence in such a magistracy was so low that litigants generally chose to settle their disputes by arbitration. With the advent of Napoleon the system of popular election was abolished, and from then until now there has been little public sentiment in France in favor of a return to a system which was so thoroughly discredited by the results of election of 1793.
The method of popular election is now the rule in the great majority of the states of the American federal union. Though outside of the United States it has made hardly any headway. In Europe and in the British self-governing colonies it is unknown, except occasionally for the election of inferior magistrates, and even in the republics of Latin America, where democratic government has made great advance, at least in theory, popular election of the judges has found little favor. The chief disadvantage of popular election is that it is apt to secure a judiciary at once weak and lacking in independence.
Where such a method Prevails the election is usually made from candidates who have been nominated by party conventions or by primary elections following campaigns through the mire of which the judicial ermine must often be dragged. The qualities which distinguish an able and fearless judge are not usually those of the successful politician and hence judges frequently make poor candidates, and are sometimes defeated by men of less fitness who are better gifted with the art of winning votes. Moreover, the masses of voters do not always possess the discrimination and understanding necessary to appreciate the soundness of judicial opinions, and hence the judge who renders a decision that does not meet the approval of public Opinion, however sound it may be in law, can be reelected only with difficulty if at all. In the judicial history of the American states, where popularly elected judiciaries are most common, instances are not lacking of the defeat of able and distinguished jurists because of unpopular judicial opinions rendered by them.
Moreover, the necessity of submitting themselves and their legal opinions at frequent intervals to the judgment of the masses creates in the judges a strong temptation to shape their decisions and indeed their whole judicial conduct in such a way as to meet the approval of those to whom they must look for reelection. No judge should be exposed to the necessity of having to curry popular favor in order to retain his office. As Chancellor Kent well observed, the fittest men are likely to have “too much reservedness of manners and severity of morals to secure an election resting on universal suffrage.” It lowers the character of the judiciary, tends to make a politician of the judge, and subjects the judicial mind to a strain which it is not always able to resist.
In some states the evils of the system of p0pular election have been reduced to some extent by the introduction of non-partisan primaries by which judicial candidates are nominated, and by separating the judicial elections from other elections and holding them at a different date. In a few states also (for example, Wisconsin) and in some of the larger cities (notably Chicago and New York) the influence of the bar in recommending suitable candidates to the electors has likewise at times produced favorable results.
Appointment by the Executive.
In nearly all countries other than the United States the judges are appointed by the executive, and even in the United States it is the method followed for the election of the federal judges and in six states for the selection of the state judges. In countries having the cabinet system of government, this “means usually appointment by the minister of justice.
In some countries the choice of the executive is limited in the case of the higher judges to the names on a list of nominees proposed by the court in which the vacancy occurs. On the continent of Europe, where the magistracy, like the diplomatic service is a closed profession, and where appointment to the lower posts is by competitive examination, and promotion is based on seniority, the freedom of the minister of justice in making appointments is somewhat restricted. There also the bench and bar are strictly separated and judicial appointments are confined to the ranks of the magistracy, practicing lawyers rarely ever being chosen to judgeship as is the custom in England and the United States.
The reason why the practice of executive appointment in some form or other has found almost universal favor outside the United States is the belief that the peculiar qualifications which a judge ought to possess are more easily discernible by the chief executive, and that in making his choice he is likely to be less influenced by personal qualities which appeal to the voters generally or by party or sectional considerations which are apt to determine the choice when it is made by the legislature. Moreover, appointment by the executive offers a greater guarantee of independence on the part of the judge than is possible under the system of popular choice when his reelection may be dependent upon the popularity of his decisions.
The Method of Executive Appointment Criticized.
Nevertheless, no one will contend that the method of executive appointment perfect. Instances are by no means lacking in the states of the American Union where appointments were made as rewards for party services or because of personal favoritism, and the requirement that the appointment should be approved by the ate senate or the executive council did not always serve as always effective check in preventing them.
In France, where the system of executive appointment has existed since the year 1800, there has been much complaint that appointments to and promotions in the magistrate, both of which functions are in fact exercised by the minister of justice, are determined in large part by‘political considerations, that is the minister is governed too frequently by the recommendations of influential deputies. M. Briand, when minister of justice in 1912, himself declared that the judges had become the prey of the politicians.
The ideal system of selecting judges has not yet been discovered. Perhaps the system of executive appointment from lists of nominees made by the court in which the vacancy is to be filled possesses merits which no other system has.
The Judicial Tenure.
In regard to the tenure of the judges we find the same diversity of opinion and practice. Most of the original thirteen states of America, in their first constitutions established a good-behavior tenure for the higher judges, and this rule was adopted by the national constitution for the federal judges. The substitution of short tenures, however, became a part of the democratic movement in the early nineteenth century and in the course of time all the American states except three abandoned the good-behavior principle for limited terms. These terms range from two years, which is the rule in Vermont, to twenty-one years, which is the term in Pennsylvania, the average being from six to nine years. In -Europe, Switzerland is the only country in which the tenure of the higher judges is limited to a definite term, the period being six years for the members of the federal tribunal. In Latin America, Mexico is the only important republic in which the good-behavior tenure is lacking, the term of the supreme judicature in that: country being six years. Outside the United States, therefore, the good-behavior principle is practically universal. “The standard of good behavior for the continuance in office of the judicial magistracy,” said Hamilton is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince in a republic, it is no less excellent barrier to the encroachments and oppression of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
Finally, as Hamilton showed, a good-behavior tenure is necessary to secure the experience and knowledge of judicial precedent which constitutes one of the most important sources of strength in the judicial office. In the course of a long judicial career marked by laborious study and constant application, the judge acquires a familiarity With the precedents which obviously cannot be gained by one whose tenure is limited to a brief period.
Removal of Judges.
In all states provision must be made for the removal of corrupt and inefficient magistrates ,for the continuance in office, and especially for life, of an incapable or corrupt judge would be intolerable. The English judges in earlier times held their offices at the royal pleasure, but this proved to be a dangerous power to vest in the executive, because it made the judiciary subservient to the crown, especially in state trials, and gave the king a control over the administration of justice at once dangerous to private rights and subversive of the liberties of the people. In the time of Lord Coke the barons of the exchequer were given a good behavior tenure; and during the reign of Charles II the same tenure was created for the common law judges, though the crown retained until after the revolution of 1688 the right to prescribe what tenure the judges should have. Finally, by an act of Parliament passed in the thirteenth, year of the reign of William III, the commissions of the judges were made to run during good behavior, and they were forbidden to be removed by the crown except upon an address of both houses of parliament.
In the United States the most common mode of removal is by impeachment, that is, through the preferment of charges by one chamber of the legislature, usually the lower, and trial by the other. The chief objections to this procedure are its cumbersomeness and the danger that the legislature may employ its power of removal for party purposes, but the latter danger is largely eliminated by the provision that an extraordinary majority of the trial chamber shall be required to remove. In twelve states provision is made for removal by the legislature, and in nine states the governor is empowered to make removals upon address by the legislature, following the English practice.
Recently the method of recall by popular election has found many advocates in the United States, and it has actually been adopted by constitutional amendment in seven states (Arizona, California, Colorado, Kansas, Nevada, North Dakota, and Oregon). This mode of removing judges has, however, been severely condemned by American jurists generally as destructive of the independence and dignity of the judiciary, and there seems little likelihood that it Will ever find general favor or acceptance.
In the states of continental Europe generally a Wholly different method for the removal of the judges prevails. There, judges may be removed only by the court of which, they are members, or by the supreme court sitting as a disciplinary tribunal, and after a regular trial, and for reasons expressly stated in the laws. Most of the Continental constitutions or organic acts relative to the judiciary also provide that a judge cannot be transferred from one judicial post to another without his consent, except by decision of the court itself.
In a few countries, how ever (e.g., Austria an Czechoslovakia), the guarantee against immovability and transfers is qualities by the reservation that removals or transfers may be made in case of the reorganization of the judicial system. In Germany, where transfers are made in such a case, the judge must be assigned to another post of equal rank and pay and receive an allowance to cover the cost of changing his residence. Provisions such as these, coupled with life tenure, insure an almost absolute independence of the judges. On the whole, it must be admitted that throughout Europe the safeguards that have been adopted to insure an independent judiciary are more effective than in the United States where the practice of popular election and limited tenures generally prevails in the individual States of the Union.