Omaha daily bee., 1894-03-04
AuENACE 70 JUDICIAL INDEPENDENCE


Il MENACE To JUDICIAL INDEPENDENCE
Not content with control of the two houses
of congress and the executive department
of the federal government, the southern
democracy now turns it's attention to the
federal judiciary, against whose independ-
ence it has undertaken to lead an attack.
In no other light can the report be con-
strued which Mr.. Oates of Alabama has
made from the judiciary committee of the
house recommending for submission to the
legislatures of the several states an amend
ment to the constitution fixing the tenure
Of our judges at ten years instead of for
life during good behavior, as is now pre-
scribed. The reasons advanced for the pro-
posed change lily conceal the purpose of
the amendment, which is to remove the
bulwark that has stood up before the en-
croachments of the states rights propa-
ganda.
In behalf of a ten years term for federal
judges it is urged that life tenure has not
secured that independence and impartiality
with which the trainers of the constitution
sought to endow the judiciary. Further
more, that some of the judges have partici-
pated in politics and have seemed to be
biased in their judgments; that they are
so far removed from responsibility to any
one that they do things from which they
would abstain were they held responsible for
their acts; that inefficient judges must be
endured until they reach the age of retire
ment, and above all that the federal judi
ciary has proved to be "a corps of sappers and
rniDarc m undermine 6iStOrt and nractipa11v
destroy all the checks and balances of the
constitution and to convert our government
into a centralism." Why the amendment
should stop short with a term of ten years,
rather than five years or three years or one
year, it's advocates have not taken the
trouble to explain. Neither has it been made
clear why, If responsibility is the thing de-
sired, that responsibility is not made direct
to the people by popular election rather than
through the clrcuitous route of presidential
appointment. Nor why, If independence is
no longer required, independence of salary
is still to be maintained. The trainers Of the
constitution esteemed the independence of
the courts so highly that they provided for
it not one safeguard but many-the life
tenure, the presidential appointment, the i'm
llulllNS llpi Il lOooibiS VI SoiuiS
all of which contribute to the same end.
To say that the constitution has failed of it's
purpose in this respect is to ignore the pal
pable teachings of experience.
Ask any lawyer which state courts are
most respected for their independence and
whose decisions are most often cited as
authorities and he will name the states
in which the judicial tenure approaches most
nearly to that of the federal judiciary.
Massachusetts,, New Jersey, Delaware and
Rhode Island have judges who hold their
offices for life. The term in Pennsylvania
is twenty-one years, in New York fourteen
years, in Maryland fifteen years. Recent
changes in different states have almost
without exception been in the direction of
longer terms. The decisions of federal
judges are looked up to not solely on ac-
count of the higher authority of the federal
government as compared with the state
governments, but also because federal judges
are regarded as less liable to be influenced
by considerations other than the demands
of true justice.
If it is objected that life tenures
have not completely abolished the political
ambitions of a few judges, how will a fixed
term remedy the evil? Look once more to
the state courts and see If their judges
offend less against the rule. The very fact
that a judge is to lose his position after a
short period on the bench requires him to
continue in politics IL he would seek a re-
appointment or a reelection. 1t requires
him to be subservient to the powers whose
favor he must cultivate. 1t exerts a power
full influence upon him to let policy rather
than principle guide his judgment. Close
responsibility and absolute independence are
incompatible elements. The trainers of the
constitution realized this and chose to esteem
independence higher than responsibility eX-
cept for Improbable crimes. In this we
have not yet progressed in wisdom from
the position which they have occupied.
The real animus Of the proposed c~onstitu-
tlonal amendment is hidden behind the
charges made against the federal judiciary
as an agency which has tended TO convert the
government into "a centralism," The south
ern democrats take exception. to a long series
Of decisions unfolding the constitutional