The Washington herald., 1907-07-25
THURSDAY, JULY %, 1907.
An Elective Federal Judiciary.

The New York World has rediscOvered
the menaCing fact that by means Of his
constitutional power TO appoint the mem
bers Of the Federal Judiciary, the Pres
ident may. 70 some extent. control the
attitude of Federal courts upon Ques-
tons likely 10 be brought before them It
appears that Mr.. Roosevelt has appoint
ed three justices OF the Supreme Court,
twelve circuit court judges. and forty
two district court judges. and may have
opportunity 10 appoint more Of them be-
fore his term OF Office expires. The World
assumes that an these app0intees are IA
Vorably inclined 10 Ro0seveltian policies
and may DE counted on 10 uphold any
portion of the Presidents political pro
gramme that may become the subject
OF litigation. Even if all this be true.
what is there in the Constitution and
laws of the United States. or in the
prccedents of our political and constitu-
tiOnal history. to prevent il? No such
phenomenon as President who would
appoint to the Supreme Court bench a
man who would decide an administration
measure unconstitutional has yet appear
being what il is, we do not expect his
appearance within the next few genera
tons
To get rid Of the terrible menace to
the independence of the judiciary which
our contemporary has unearthed 1t would
be necessary to alter the Constitution Of
the United States. which, In this particu-
lar instance, strange to say, the Presi-
dent is not accused of violating. Gen.
Roger A. Pryor, formerly a judge of
the Supreme Court of New York, is
quoted in the World as favoring an
elective Federal Judiciary as a safeguard
against Presidential packing Of the Fed
erai bench. He agrees with Jefferson, that
the Judges ought to serve for terms of
six years, and that an elective judiciary
would be an ideal system THE Constitu-
ton says Gen. Pryor, intended to make
the judges Independent. but the instru-
ment fails in this. An appointed Judge
can't help being biased in favor of the
appointing power, especially if he has
all his life entertained the opinions of
the Executive"
Just how an elective judiciary could be
Independent Of current political opinion.
Gen Pryor fails 10 inform US If Fed
eral judges We're elected. inquiry into
their personal opinions upon all questions
OF the day would be inevitable. for If is
incoEceivable that any candidate for a
Federal judgeship would be able 10 secure
his election without committing himself
10 the popular view OF matters likely TO
come up before him. Would the people of
North Carolina vote for Judge Pritchard.
or for a successor to him who would not
pledge himself TO keep his hands off the
State courts? Would the people Of the
United states vote for a candidate for
the Federal Supreme bench who was op-
posed to antitrust legislation, or to the
regulation Of railroad rates. or to the
income tax? Or would they vote for
such a candidate without finding ont
where he stood on these questions?
An elective Federal Judiciary would be
even more responsive to the prevailing
political senupent Of the country than an
appointive bench. Instead of being biased
In favor of the appointing power. as Gen.
Pryor says it now is. it would be biased
in favor Of the majority upon which IL
depended for election. Whether il would
be better TO have the complexion of the
Federal judiciary determined by popular
vote rather than by Presidential appoint
ment is more than doubtful. Gen. Pry-
or's remedy strikes us as worse than
the disease he seeks 10 have cured.