New-York tribune., 1905-06-24
A QUESTION OF PRECEDENTS.

With those persons whose discovery that the
constitutional provision for the removal of
judges is dangerous thing arises merely from
a desire to evade a disagreeable duty or pro-
tect an indicted friend argument concern
ing the proper procedure in the Hooker
is worth while They are merely seeking ex-
cuses, and are bound to find them whether
good or bad. Those students of government
who with no such unworthy purpose look with
apprehension at the establishment OF prece
dent for interference with the judiciary by the
legislative department, except by the method
Of impeachment for actual crime or official
misconduct, hedged about by the rules of the
common law, deserve, however some considera-
ton
We respect their scruples and agree with them
as to the Importance of maintaining the lnde-
pendence and equality Of the three coordinate
departments of government. 1t would be high
" unfortunate to make judicial tenure in any
sense dependent on legislative caprice We
have already shown in these columns that there
is nothing unprecedented in the procedure au-
thorized by the constitution. In essence 1t has
been part Of our constitution since 1921, when
1t was introduced by Rufus King, with the sup
port Of Chancellor Kent. In the constitutional
convention of 1916 1t was proposed to limit
the cause of removal to inability to discharge
the duties Of his office arising since election"
This was opposed by Charles OConor, who
declared that under it "a judge guilty of gross
immortality, not recognized by the law a
crime could not be impeached nor
moved on ground of inability, and yet the
public judgment might be decisive against
''him." The proposal was voted down, and we
have ever since had removal by the legislature
for cause" which in law means q Judgment
that an oficeholder is mot fit or proper per-
son TO hold the Office a method of removal
far more open to abuse has been used in Mas
sachusetts for more than a century, and no
where are the courts more independent and Of
higher character. At least twenty other States
have analogous provisions for displacing unfit
judges. Removal by address" is an ancient
feature of the British Constitution Lack Of
provision for removal for cause not strictly
and properly the subject Of impeachment leads
to misuse of impeachment when passions run
high.
In this State, where judges have no life ten
ure but must stand for reelection with COM
parative frequency, the opportunity to displace
a good Judge for political reasons or for preju-
dice is fully as great at the polls as 1t could
be by the vote, after hearing, Of two-thlrds
of the members elected to each house Of the
legislature. Yet popular sentiment IN favor of
an independent and non-partisan judiciary Is
so strong as to overcome political rivalres and
personal dmDlQOnS ana ledQ WIN increasing
frequency to the unopposed reelection of
judges of proved capacity. The public senti-
ment which can accomplish this in spite OF the
naturally great pressure of men and parties to
secure these places when they are fairly open
to honorable competition certainly should be
sufficient to prevent unreasonable and arbi-
trary exercise of power to remove In an emer-
gency. especially as that power cannot be e1er-
cised in secret, but must be for cause after an
opportunity for defence, when the public will
have every chance to judge Of the fairness Of
the decision
But even If, In spite Of these facts, some
lawyers and judges have honest scruples about
the precedent which would be established by
the exercise of this power they should consider
the precedent of refusing to exercise 1t. We
have nothing to say against judgment after
hearing that Justice Hooker has been wrong
fully accused. if the fact shall so appear. What,
however will be the meaning Of refusal to
proceed on the recommendation Of the Assem-
bIy committee? 1t will be q notice to every
Judge for all time that he can safely be as cor
r,1pt or immoral as he may desire, If he only
avoids impeachable crime. Talk about bad
precedents and decentralization Of the judiciary!
Could ANYTHING be more demorazing or a
worse precedent than the deliberate declara-
ton of the legislature that it would not use
the authority conferred by the constitution to
preserve a fit judiciary, that the constitution
in this respect was a dead letter, and that
Judges might be immoral and corrupt and still
irremovable?