The Bridgeport evening farmer., 1911-07-10
THE RECALL OF JUDGES
(Benoh and Bar =

THE RECALL OF JUDGES
 l (Benoh and Bar)@
 l Some of the states have adopte,
 constitutional provisions for the re
 call of executive and legislative off l cers; but it has remained for Arizona
 which wants to become a state, to in
 clude in it's proposed constitution
 now before congress, a provision fol
 the recall of judges, section l of aru I cle' VII of the proposed constitution
 read as follows:
 Every public officer in the stats 1 of Arizona, holding an elective office | either by election or appointment, i: | subject to recall from such office by
 the qualified electors of the electora | district from which candidates are elected to such office. Such electora l district may Include the whole state | Such number of said electors as shal l equal. 25 Der certum of the number | of votes cast at the last preceding general election for all of the candi- | dates for the office held by such office
 known as a recall petition, demand his recall.''
 In the election which Is to follow the filing of the recall petition, the incumbent of the office may be a candidate, if he desires; and other
 candidates may be nominated, and
 the candidate who receives a. plurality
 of votes is to be declared elected. It is
 provided by the Judiciary arthcle (ar-
 ticle vi.) that judges of the supreme
 court are to be elected by the whole
 state for terms of six years and
 judges of the superior court by coun-
 ties for terms of four years.
 We need not stop to consider the
 special features of article vii. of the
 proposed constitution, because in our
 judgment, the recall provision, as ap-
 ly Subversive of the fundamental con-
 captions underlying the proper exer-
 else of the judicial function. The
 Judge is, to be sure, public servant.
 But at the same time he is not called
 upon to respond to the popular opin-
 ion of the moment as the members
 of the legislative body, and as, to a
 lesser degree, is the executive. It is
 the duty of judge to enforce what
 Justice Hughes has aptly character
 ized as the fundamental will of the
 people''-that is, the deliberate judg- ment of the people as embodied in the constitution and the laws. Now,
 everyone will recognize that the pub lie sentiment of the moment may be hostile to the enforcement of some panticular law or constitutional pro- vision; that even a majority of the voters may be opposed to it, and that, rather than abide by it until it can be amended, they would like to see the courts disregard it, and enforce as law whatever whim may be upper most in the popular mind. Even decision which is intrinsically just and right, as well as in accord with the Ia h<t foh fn "a popular mood, especially when the people are inflamed by demagogic ap- peals against wealth and property rights. Yet we all know that it is the duty of a judge to be deaf to popular clarnor, howevef loud. or however constderablie the proportion of citizens, from whom it comes, and to deter mine the case before him strictly ac- cording to the provisions of law. It is clearly the duty of judge. If need be to sustain the constitutional and legal rights of one individual as against the whole community or the whole state. There are doubtless great numbers among the judges in America who would do this even though it might cost them their of fees But there are many who, con-, or otherwise, would listen to the popular voice and be guided by it if such system as is proposed for Arizona were to be put into operation; and certainly If a judge should be re- called from office by reason of a just and right decision, the effect upon the integrity of the Judiciary would be It needs no argument to show that the people en masse are not in a position to judge properly as to the merits of any particular case. They must generally lack both accu- rate knowledge of the facts and the necessary understanding of the princt. ples of law; and even considerat tons of abstract justice are likely to be for gotten in times of public excitement.
 History shows us that there have been two kinds of tyranny, the tyranny of the autocrat or of ruling class, and the tyranny of the mob. Of the two the latter is by far the worse. Marat and Robespierre were creatures of the mob, and the atrocities perpe- trated under their rule far exceeded those of the latter Bourbons, bad as conditions were in their times. It was in the administration of justice that the tyranny of these revolution ary leaders was most obnoxious. Even in recent times the, notorious Drey fus case furnishes an example of ju- dictal subserviency to popular preju- I dice, the injustces twice done by the courts having been happily overruled by the court of cessation. Tn our own country, on the other hand, we still refer with admiration to the conduct of Marshall in accord | Ing to Aaron Burr when on trial for treason, every right to which the law entitled him, despite the high current of popular feeling against him.
 The founders of the American re- public, by committing the exercise of the functions of government to respon- | sible officers elected by the people, or chosen by those so elected, and by the distrdbution of powers into the three branches of government, steered a safe course between the Scylla of and the Charybdis of ''mob 1cracy''-as Dr. Lyman Abbott has it. They were notably successful in their undertaking to es- tablish "a government of laws and not of men," The tendency of the recall provision in the proposed Arizona con- stitution is toward a government of men and not of laws; for it will be possible hereunder to remove a judge | from office before he enforces the law. We see no theory upon which either party ill Congress can approve this provision, consistently with it's declar- | ad principles; and, in our opinion, the | rejection of the proposed constitution l 1n this ground would be wholesome | rebuke to incorporate radicalsm, de- l spite the fact that it might be inef- | fective to prevent Arizona from hav- 1 ng a recall provision applicable to | Judges, if her people really want it. for one could be Inserted by amend 1 nent as soon as the State government 1