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The Commoner.
VOLUME li, NUMBER 33
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tho resolution approves the admis
sion of Arizona with the judicial
recall, unless tho voters themselves
repudiate it.
"Under the Arizona constitution
all elective officers and these include
county and state judges, six months
after their election, are subject to
tho recall. It Is initiated by a peti
tion signed by electors equal to 25
per cent of the total number of votes
cast for all tho candidates for the
office at the previous general elec
tion. "Within live days after the peti
tion Is filed, tho officer may resign.
"Whether he does or not, an election
ensues in which his name, if ho does
not resign, is placed on the ballot
with that of all other candidates.
"The petitioners may print on the
official ballot 200 words showing
their reasons for recalling the officer,
and he is permitted to make defense
in the same place in 200 words. If
the incumbent receives the highest
number of the votes he continues" in
his office; if not, he is removed from
office and is succeeded by the can
didate who does receive tho highest
number.
. "This provision of the Arizona
constitution, in its application to
county and state judges, seems to
mo pernicious in its effect, so
destructive of Independence In the
judiciary, so likely to subject tho
rights of the individual to tho pos
sible tyranny of a popular majority
and, therefore, to be so injurious to
tho cause of free government that I
must disapprove a constitution con
taining it.
"Of course a difference of opinion
as to the wisdom details in a state
constitution ought not to lead me to
set up my opinion against that of
tho people of the territory. It is to
ho their government and while the
power of congress to withhold or
grant statehood is absolute, tho
people about to constitute a state
should gonerally know better tho
kind of government and constitution
suited to their needs than congress
or the executive. But when such a
cons'titution contains something so
destructive of free government as the
judicial recall it should be disap
proved. "By the recall in the Arizona con
stitution it is proposed to give to
the majority to remove arbitrarily
and without any delay any judge
who may have tho courage to render
an unpopular decision.
"By the recall it is proposed to
enable a majority of 25 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 peti
tioning minority must say on the
ballot 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 present themselves and have their
names printed on the ballot, so that
tho recall is not based solely on the
record or tho acts of the judge, but
also on tho question whether some
other and more popular candidate
has been found to unseat him.
"Could there bo a system more
Ingeniously devised to subject judges
to momentary gusts of popular pas
sion than this? We can not be blind
to the fact that often an intelligent
arid respectable electorate may be
bo. roused over an issue that It will
visit with condemnation the decision
of a just judge, though exactly In
accord with the law governing the
case, merely because it affects un
favorably their contest.
"Controversies over elections,
labor troubles, racial or. religious
issues, issues as to the construction
or constituionality of liquor laws,
criminal trials of popular or unpopu
lar defendantSj the removal of county
seats, suits by individuals to niain-
' tain their constitutional rights in ob
struction of some popular improve
ment these and many other cases
could be cited in which a majority
of a district electorate would be
tempted by hasty anger to recall a
conscientious judge if the oppor
tunity were open all the time.
"No period of delay Is interposed
for the abatement of popular feel
ing. The recall Is devised to en
courage quick action, and to lead the
people to strike while the iron is hot.
The judge is treated as the instru
ment and servant of a majority of
the people and subject to their mo
mentary will, not after a long term
in which his qualities as a judge and
his character as a man have been
subjected to a test of all the varie
ties of judicial work and duty so as
to furnish a proper means of measur
ing his fitness for continuance in an
other term.
"On the instant of an unpopular
ruling, while tho spirit of protest has
not had time to cool and even while
an appeal may be pending from his
ruling hi which he may be sustained,
he is to be haled before the electo
rate 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
system would give to .unscrupulous
political bosses in control, as they
have been in control not only of con
ventions, but elections. Think of the
enormous power for evil given tp
the sensational, muckraking portion
of the press in rousing prejudice
against a just judge by false charges
and Insinuations, the effect of which
In the short period of an election by
recall, it would be impossible for him
to meet and offset.
times that shortly before election in
cases In which popular interest is
excited, judges have leaned in their
decisions toward tho popular side.
"As already pointed out, however,
in the election of judges for a long
and fixed term of years, tho fear of
popular prejudice as a motive for un
just decisions is minimized by the
tenure on the one hand while the op
portunity which the people have
calmly to consider the work of a
judge for a full term of years In de
ciding as to his re-election generally
insures from them a fair and reason
able consideration of his qualities
as a judge.
"While, therefore, there have
elected judges who have bowed be
fore unjust popular prejudice, or who
have yielded to the power of political
bosses in their decisions, I am con
vinced that these are exceptional, and
that, on the whole, elected judges
have made a great American
judiciary. But the success of an
elective judiciary certainly furnishes
no reason for so changing the system
as to take away the very safeguards
which have made it successful.
"Attempt is made to defend the
principle of judicial recall by refer
ence to states in which judges are
said to have shown themselves to be
under corrupt corporate influence
and in which it is claimed that noth
ing but a desperate remedy will
suffice. If the political control in
such states is sufficiently wrested
from corrupting corporations to per
mit the enactment of a radical con
stitutional amendment like that of
judicial recall, it would seem possible
to make provision in its stead of an
effective remedy by impeachment in
which the cumbrous features of the
present remedy might be avoided,
but the opportunity for judicial
Supporters of such a scheme hearing and defense before an im-
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 corporations and
be affected by the corrupting in
fluence of the rich. Nothing could
be further from the ultimate result.
Tho motive it would offer to unscru
pulous combinations to seek to con
trol politics in order to control the
judges is clear.
"Those who will benefit by the re
call are those who have the best op
portunity of the majority of the
people to action on a sudden impulse.
Are they likely to be the wisest or
tho best people in a community? Do
they not include those who have
money enough to employ firebrands
and slanderers in a community and
the stirrers up of social hate? Would
not self-respecting men well hesitate
to accept judicial office with such a
sword of Damocles hanging over
them?
"What kind of judgments might
tho unpopular side expect from
courts whose judges must make their
decisions under such legalized ter
rorism? The character of the judges
would deteriorate to that of trim
mers and time servers and indepen
dent judicial action would be a thing
of the past. As the possibilities of
such a system pass in review, is it
too much to characterize it as one
which will destroy the judiciary, its
partial tribunal might bo retained.
"Real reforms are not to be
effected by patent short cuts or by
abolishing those requirements which
the experience has shown to be essen
tial in dealing justly with everyone.
Such innovations are- certain in the
long run to plague the inventor or
first user and will come readily to the
hand of the enemies and corrupters
of society after the passing of the
just popular indignation that
prompted their adoption.
"Again, judicial recall is advo'cated
on the ground that it will bring the
judges more into sympathy with the
popular will and the progress of
ideas among the people. It is said
that now judges are out of touch
with the movement toward a wider
democracy and a greater control of
governmental agencies in the Interest
and for the benefit of the people.
"The righteous and just course for
a judge to pursue is ordinarily fixed
by statute or clear principles of law,
and the cases in which his judgment
may be affected by his political, eco
nomical or social views are infre
quent. But even in such cases,
judges aTo not removed from the
people's influence. Surround the
judiciary with all the safeguards
possible, create judges by appoint
ment, make their tenure for life,
forbid diminution of salary during
their term and. still it is impossible
pointed out but they are not many
and do not call for radical action
"In treating of courts we are deal
ing with a human machine, liable
like all the inventions of man to err
but we are dealing with a human in
stitution that likens itself to a divine
institution because it seeks and pre
serves justice. It has been the cor
nerstone of our gloriously free gov
ernment in which the rights of the
individual and of the minority have
been preserved, while governmental
aqtion of the majority has lost noth
ing of beneficent progress, efficacy
and directness. This balance was
planned in the constitution by its
framers and has been maintained by
our independent judiciary.
"Precedents are cited from state
constitutions said to be equivalent
to a popular recall. In some cases
judges are removable by a vote of
both houses of the legislature. This
is a mere adoption of the English
address of parliament to the crown
for the removal of judges. It is
similar to impeachment in that a
form of hearing is always granted.
Such a provision forms no precedent
for a popular recall without adequato
hearing and defense, and with new
candidates to contest the election.
"It is said the recall will be rarely
used. If so, it will be rarely needed.
Then why adopt a system so full of
danger. But it is a mistake to sup
pose that such a powerful lever for
influencing judicial decisions and
such an opportunity for vengeance
because of adverse ones will be al
lowed to remain unused.
"But it is said that the people of
Arizona are to become an indepen
dent state when created, and even if
we strike out judicial recall now,
they can incorporate it in their con
stitution after statehood.
"To this I would answer that in
dealing with the courts, which are
the cornerstone of good government
and in which not only the voters but
the non-voters and non-residents,
have a deep interest as a security for
their .rights of life, liberty and
property, no matter what the future
action of the state may be, it is
necessary for the authority which is
primarily responsible for its creation
to assert in no doubtful tones the
necessity for an independent and un
trammeled judiciary."
SIGNIFICANT
Wife (who is without a girl)
Why, the atmosphere of this kitchen
is blue. What causes it?
Husband (who has been trying to
get breakfast) I've just burned my
fingers. New York Weekly.
standing, and its usefulness? The to prevent tho influence of popular
I argument has been made to justify
tho judicial recau mat it is only
carrying out the principle of the elec
tion of the judges by the people. The
appointment by the executive by the
representation of tho majority in so
far as future bias is concerned there
is no great difference between the
appointment and the election of
judges. The independence on the
judiciary is secured rather by a fixed
term and fixed and irreducible salary.
It is true that when the term of
judges is for a limited number of
years and re-elections is necessary it
opinion from coloring judgments in
the long run.
"Judges are men, intelligent, sym
pathetic men, patriotic men, and in
those fields of the law in which the
personal equation unavoidably plays
a part, there will be found a resppnse
to sober, popular opinion as it
changes to meet the exigency of so
cial, political and economic changes.
"Indeed this should be so indi
vidual instances of a high-bound and
retrograde conservatism on the. part
of courts in decisions which turn on
the individual economic or sociologi
Subscribers' JHtotflisiitfl Dept.
This department Is lor tho benefit
of Commoner subscribers, and a special
rate of six cents a word per insertion
the low est rate has been made tor
them. Address all communications to
Tho Commoner, Lincoln. Nebraslca.
UAVANA Cigars, made from Puro
Havana tobacco, 25 for $1.00, de
livered anywhero in tho United States.
Havana Specialty Co., Dept. 16, Baton
Rogue, La. i-
n AWMQ nT"irront hnrtrllna. T. A.
L. iliMUU UW B- ---a
Baggett, Guthrie, Oklahoma.
has been thought and charged some-1 cal views of the judges may be
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