66o
THE GREEN BAG
formulate its preferences. The Senate's power to confirm operates, moreover, as a check upon hasty or indiscreet selection by the Executive, and even though presidential favoritism should force a way, an appointee would rarely be confirmed, if openly chal lenged, unless honest, at all events, and fairly fit for the place. Then again, with the present secure tenure, vacancies scatter and occur but seldom; hence deliberation over a new appointment is readily invited. Both in Massachusetts and where our fed eral jurisdiction pertains, the old English principle of holding office during good be havior is well justified by a long line of hon orable incumbents, impartial and uncorrupt, constantly gaining by experience. Once promoted to the Bench, they have dismissed all other public ambition and devoted them selves faithfully and unreservedly to admin istering justice while active life remains. Men thus placed we see rising perhaps to still higher honors on the Bench, seldom turning to active politics; and content with a moderate salary which may not be dimin ished, with perhaps a pension promised upon final retirement, they seldom return to the active walks of the profession to seek larger emolument. But should the rule be altered, a choice of United States judges by both Houses of Congress would seem preferable to elections by the people at large. For such incum bents would be peculiarly liable to the de basing influence of party caucus and con vention machinery — of boss deals or boss dictation — were they set to canvassing for their nominations; while in the election con tests they would most probably lose or win simply as subsidiary to the presidential or congressional candidates on whose tickets they were placed. We have to-day, in most states, the choice of judges at the polls; yet here the range is circumscribed and only in an agricultural district or commonwealth, simple and sparse, can it be said that such tests for the judicial office are satisfactory. As for limiting the tenure of a judiciary to
a fixed term of years, state experiments have varied; but men in the legal profession most desirable will not readily come forward upon such inducements, but prefer their own private independence. States, once committed to the new and popular choice have not, to be sure, returned to the older methods; yet in populous and wealthy states, particularly where great concerns are liti gated, the tendency of late years has been towards longer terms of judicial office than were favored when the reform commenced.1 Massachusetts, in 1853, spurned at the polls the effort of her constitutional convention to limit the tenure of her judiciary; and as for the United States, all discussion must be considered academic, as to either tenure or mode of appointment, since the federal con stitution is not to be easily changed at all. Were, however, the judiciary article in our federal constitution to be amended here after in any respect, a change in the method of removing judges for crime, misdemeanor, or positive incapacity would seem desirable. Resignation cannot be forced; and the only method now available for ridding the fed eral judiciary of an obnoxious incumbent (short of abolishing such tribunals as are inferior to the Supreme Court) is the anti quated and spectacular one of a legislative impeachment, applicable to all civil officers of the United States. This involves much waste of time which Congress needs for its regular business, and when applied to our lesser judicial incumbents it is as cumbrous as to work some ponderous pulverizer to crush an acorn; only high and prominent political offenders — the hated or the be loved of the people — deserve so pompous a procedure. Nor is the Senate a safe tri bunal to be intrusted with important trials, in addition to functions more purely politi cal which it so amply exercises. The judge who deserves removal is usually corrupt, immoral, or manifestly incapable, but rarely 1 In New York the highest judges are now elected for fourteen years and in Pennsylvania for twentv-one.
