The free lance. (Fredericksburg, Va.) 1885-1926, 1911-08-10
RECALL FIGHT ON
Senator BOrah For lnde.
pendent Judiciary.
HOT DEBATE ON STATEHOOD
Idaho Man. Opposing Recall Of
Judges, DenOunces Depart
ments For Removing Fed
eral Jurists.

Washington, D. c.. Aug. S.-That
there has arisen in the last few years
a quiet, subtle way Of getting rid OF
federal judges was a startling declar
alton made in the debate on the Arl'
zona-New Mexico statehood resolution
by Senator Borah, Of Idaho, in oppos
Ing the judiciary recall.
He asserted that the executive do
pariments had found a way Of hav
ing federals judges removed II their
opinions did not suit the department
heads.
Il am opposed to private as well as
to public recall Of judges, he said
but II there Is to be any recall want
it to be public and open. not subtle
and behind doors. II the people once
learn that their judicial system is in
nuenced by political considerations
they will demand to hold the string
themselves"
Senator Borah, Of Idaho, vigorously
attacked the principle underlying the
recall OF the judiciary. lie declared
Il 10 be his deliberate and uncom
promising opinion" that without a
free and independent judiciary, popu-
lar government would be "a taunting,
tormenting delusion."
He declared that in framing laws
legislators should be guided by a
wrll-formed and wellsustalned public
opinion. The practical wisdom born
Of reflection and experience of 9o,Ooo,'
0oo people. he said. was a remarkably
safe guide for lawmakers. Laws
should embody in their enactment, as
nearly as might be, he added. the
practical information OF the railroad
owner. laborer, farmer. banker, mer'
chant. lawyer and the thousands upon
whose integrity rests the fabric OF
modern business.
In emphasizing the importance OF
absolutely Independent judiciary,
who should consider nothing but the
terms of the law as written Senator
Borah registered his disapproval OF
judicial legislation.
"If the law be a bad law, detri'
mental to the public welfare - he said,
the people may modify or repeal 1t.
But the Judge who legislates not only
violates his oath, but undermines the
basic principles of our institutions
and opens the door to injustice and
fraud.
Il am afraid that the principle OF
the recall, as applied to judges, Will
tend to establish the rule OF the ma
jority in judicial controversy. II Will
tend to make decisions bear the color
and drift Of Of majority rule or party
I'm domination rather than that OF n
faithful rendition Of the law and the
facts.
I'VE sometimes argue that the first
people Of democratic or republican
government is that the majority shall
rule. That is true in making laws
and determining policies, but it has
no place in and will destroy republ-
can government If applied to the
courts or to controversies to be de-
termined under the law. There all
men are equal.
"A government which will not pro-
tect me in my rights, though | stand
alone and against all my neighbors,
Is a despotic government. II our
courts are taught to listen, trained by
this subtle process Of the years, to
hearken to the voice of the majority
to whom will the minority appeal for
relief?
III the voice of the majority con-
trolls. II this principle finally comes to
be recognized In the timidity OF
jndges. to what power in our gov
ernment will the isolated. the unfor-
tnnate. the humble and the poor go
for relief? Where will those without
prestige, without wealth or social
rank go for protection?'
Senator Root declared that in many
cases upon which courts were called
to decide-questions Of a criminal,
political. religious. social and eco
nomlc character-great popular feel
ing was aroused. He held that popn-
lar recall OF Judges would mean that,
while "the Judge would be supposed
to decide the case by the evidence,
he himself would be judged by the
newspaper reports of the case, neces-
sarily brief and partial
Newspapers, he said, were looking
for the sensational and spectacular
features" Of a trial, and that the peo-
pic formed their opinions largely from
these accounts.