Omaha daily bee., 1911-08-16

: effectively secures adherence to the funda-
mental will Of the people.
Provision T. TOO Broad.
What have said has beer to llt:le pur-
peso II It has not shown that judges, to
/ fulfill ;heir functions properly IN our
popular government, must be more indie
pendent than In any other form OF govern
ment, and that need Of independence Is
/ greatest where the individual Is one liti-
giant, and the state. guided by the success
/ full and governing majority, Is the other.
| In order TO maintain the rights OF the ma
/ jority and rights OF the individual and to
preserve our constitutional balance, we
must have judges with courage to direct
against the majority when justice and law
| require"
BY the recall in the Arizona constitution
1t is proposed to give to the majority to
remove arbitrarily and without delay any
Judge who may have the courage to render
an unpopular decision.
BY the recall II is proposed to enable
a minority of Is per cent Of the voters Of
the district or state for no prescribed
cause. after the Judge has been in office
six months, to submit the question Of his
retention In office to the electorate. The
ILlnOTlly Hlusl say Oh lub phiAON
what they can against him in 200 words
and he must defend as best he can in the
same space.
"Other candidates are permitted to pre-
sent themselves and have their names
printed on the ballot. so that the recall Is
not based solely on the record or the acts
of the Judge, but also on the question
whether some other more popular candi-
date has been found to unseat him.
Gould there be a system more ingen-
iously devised to subject judges to momen-
tary gusts Of popular passion than this?
We cannot be blind to the fact that often
an intelligent and respectable electorate
may be so reused over an issue that It will
visit with condemnation the decision of g
just Judge, though exactly in accord with
the law governing the case, merely be-
cause it affects unfavorably their contest.
Controversies over elections labor troub-
les, racial or religious issues issues as
TO the construction or constitutionality of
liquor laws, criminal trials Of popular or
unpopular defendants, the removal of
county seats, suits by individuals to main
tain their constitutional rights in obstruc-
ton of popular Improvement, these and
many other cases could be cited i'm which
a majority Of a district electorate would
Ue tempted Dy nasty anger 10 TeCdlld COil-
scientious judge If the opportunity were
open all the time.
Its Action TOO Quick.
mo period of delay is interposed for the
abatement of popular feeling. The recall
is devised to encourage quick action, and
to lead the people to strike while the iron
is hot. The judge is treated as the in
instrument and servant of a majority of the
people and subject to their mamentary will,
not after long term in which his quail
ties judge and his character as a man
have been subjected to test of all the va
rieties of judicial work and duty so as to
furnish a proper means of measuring his
fitness for continuance in another term.
on the instant of an unpopular ruling,
while the spirit Of protest has not had
time to cool and even while an special
may depending from his ruling, in which
he may be sustained, he is to be hailed
before the electorate in a tribunal, with no
judicial hearing, evidence, or defense, and
thrown out Of office, and disgraced for
life, because he has failed, in a single
decision, it may be TO satisfy the popular
demand.
Think of the opportunity, such a sys-
tenn would give to INSCRIPTIONS political
bosses, in control. as they have been in
control not only of conventions, but cleo
tons. Think of the enormous power for
evil given to the sensational, mucraking
portion of the press in rouslng prejudice
against just judge by false charges and
insinuations, the effect OF which in the
short period of an election by recall, II
would be impossible for him to meet and
offset.
Supporters of such a scheme seem to
think it will work only in the interest Of
the poor, the humble, the weak and the
oppressed; that it will strike down only
the judge, who is supposed to favor cor
porations and be affected by the corrupt
ing influence Of the rich Nothing could
be further from the ultimate results. The
motive It would offer to INSCRIPTIONS
combinations to seek to control politics
in order to control the judges is clear.
Those who will benefit by the recall
are those, who have the best opportunity
OF the majority OF the people TO action on
a sudden impulse. Are they likely to be
the wisest or the best people IN q COM
munity? Do they not include those, who
have money enough to employ frebrands
and slanderers in a community and the
stirrers up Of social hate? Would not self
respecting men we'll hesitate to accept
Win SuCn q SWORD OF
Daemocles hanging over them?
Courts Would Detertorate.
What kind of judgments might the I'M
popular side expect from courts whose
judges must make their decisions under
such legalized terrorism? The characer OF
the judges would deteriorate to that of
trimmers and timeservers and independent
judicial action would be thing of the
past. As the possibilities of such a system
pass in review, Is It too much to charac-
terize II as one which will destroy the
judiciary, It's standing and its usefulness?
The argument has been made to Justify the
judicial recall that Il is only carrying out
the principle of the election of the Judges
by the people The appointment by the
executives by the representation OF the
majority insofar as future bias is con-
cerned there is no great difference be-
tween the appointment and the election OF
judges. The independence on the judiciary
Is secured rather by a fixed term and fixed
and irreducble salary IT is true that
when the terms OF judges is tur a limited
number OF years and re-elections are nee
essary II has been thought and charged
sometimes that shortly before election in
cases in which popular interest is excited,
judges have leaned in their decisions
toward the popular side. r..