Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-06-15
A CHANGE OF DOUBTFUL ExpEDlENCY

proposition is to abandon the appolntive
system for ,the elective, and thus conform
the French to the American Judiciary.
Before adop ing so important change the
French legislators will do well to give more
study to the workings of the principle pro
| posed to them. In the United States the
system of electing Judges has certainly
not operated so satisfactorily as to justify
it's extension. The chief defect OF our
elective judiciary has been found to con-
sist in the great difficulty OF obtaining real
independence on the bench. 1t has ap
pearei to he the rule that while 10 the
absence OF exciting issues our elective
| Judiciary worked smoothly and well, the
presence OF such issues is always liable to
be reflected in the decisions Of the bench.
| Sometimes this tendency towards bias has
been productive of very alarming and dis
| creditable manifestations. Instances have
occurred in which Courts have seemed
little better than the mouth pieces oil
excited factions, and where the fundamental
principles Of justice and equity have been
disregarded, or even fagrantly violated,
for the apparent purpose of gratifying and
pandering to the prevailing popular senti-
ment. It is true that it is impossible I'M
der any circumstances to secure absolute
impartiality on the bench, since judges are
human, and cannot entirely divest them
selves OF prejudice in the performance of
their duties. 1t is true that the appointiye
system has sometimes produced marked in
stances of bias, and that there must always
be some danger that appointed Judges
will be more or less subservent to the
source of their power. But when every
allowance necessary has been made for
these rawbacks, it must be admitted that
| the danger OF bias and subserviency is very
much less in the appointive than in the
elective Judiciary.
In the first place the practice of electing
Judges for few years produces many bad
results. The exercise of Judicial functions
necessarily units "a lawyer for practice at
the bar, and this every man who has
served on the bench, and then returned
to practice as an attorney, must admit.
The habit of weighing both sides of every
case in al even balance, which is indispsns
able to the Judge, is injurious to the prac-
tieing lawyer, since it tends to prevent
him from applying his mind with any
enthusiasm to one side Of a cause.
The bench therefore tends to disqualify
its occupants for practice at the bar, and for
this reason the man who has served term
as Judge naturally desires to remain on the
bench. But in order to secure another
term he must employ the arts of the poll
ticiaR. He must strive to render himself
popular. He must seek to make the
conscientious discharge OF his judicial func-
tions consist with the practice OF Ger.
tain amount of demagogy. This he cannot
do, for the two things are Incompatible.
But mahy Judges have attempted the feat,
and to the derogation of their independ-
ence and impartiality. Should some
exciting issue arise, involving litigation,
there is a strong temptati0 to the office
seeking Judge to assume position in re-
gard to it which will create the impression
that he can be trusted to render decision
in harmony with the prevailing sentiment
OF course no man can enter into such
methods without ipjuring his own char
acter and degrading the bench, but such
temptations beset an appointed Judiciary,
and there are many who yield to them.
So common, indeed, has this kind OF ju-
dicial pandering become that men often
discuss the probable action of this or
that Judge upon leading issues, in con-
nection with, and as being dependent upon,
their political ambition. 1t is possible that
in many cases the persons so spoken of i'm
agine that they have escaped criticism, but
the public scent for selfish motives is very
keen, and few who have been led away
by their office-hunger escape detection.
1t is however, not altogether just to put
upon the Judges the responsibility which
really belongs to the system. An elected
judiciary must, in the nature of the case,
be less independent than an appointed one.
The very principles and considerations
which operate in the most salutary way
when applied to other officers, affect the
judiciary ipjuriously. 1t is necessary and
desirable that other public officers should
always be strictly amenable to the public
1t is neither necessary nor desirable that
the judiciary should be amenable to public
opinion. For they are appointed to admin.
lister laws already framed, and to do justice
between contending parties without respect
of persons, and without fear or favor. The
ideal Judge is completely independent of
external criticism. He is guided by the
law and by his conscience. and he recog-
nizes no other influence. II is to him in.
different whether the party to case be
popular or unpopular whether the result
of q case be this or that. He proceeds in
all cases with the same impartiality,
and he renders his decisions upon no other
ground than that OF right.
Under the elective system it requires a
very strong and self-poised nature to live
up to this standard, and such natures are
seldom found in the political arena. A
Judge, moreover, should not have to seek
Office. He should be selected for it be.
cause of his manifest qualifications. Nor
should he be chosen for his politics, since
they can only exercise disturbing in.
fiuence over his legal attainments. Under
the appointive system Governments are
compelled to make selections which will
stand criticism, but no such obligation
rests upon the people, and as result men
totally unfit are every day nominated and
elected to judicial offices. The French
Chamber of Deputies is on the verge of a
great mistake, and should it adopt the
elective system for its Judiciary it will re.
psnt the change instantly. 1t has at
present some difficulties to contend witn,
but they are as nothing to those which are
inseparable from the elective system. In
this country public opinion ia steadily NOV
ing towards the abandonment of the
method which the French appear about to
adopt so precipitately.