Page:The Green Bag (1889–1914), Volume 25.pdf/79

This page needs to be proofread.


68

The Green Bag

and efficiency, and entitled to a pension after reasonably long service, or on dis ability. The judge should always be the principal person in the court-room. He is in England; often he is not in this country. The American practice of electing judges for short terms has seriously impaired in many states the quality of judges and their position in the community. The very voters that elect the judges easily acquire a habit of distrusting them. This serious change in the position and function of the judge has been accompan ied by a change in the habits of eminent legal practitioners which also tends to the lowering of courts and judicial procedure in the public estimation. It has been noticeable of late years that leading lawyers are not much in court-rooms. They work in private chambers for rich men and rich corporations, drawing legal papers for promoters, industrial adventurers and bankers. In this ser vice higher fees can be charged than in service before the courts. It is com monly the junior members of large legal firms who argue cases in court. The passing of the judge, the disappearance of great court-room advocates, the popu lar distrust of courts, and the disposition of rich business men and corpora tions to avoid litigation and "beat the law" so far as they safely can, and even farther, have constituted a vicious circle of evil tendencies in both theory and practice, the effects of which on public opinion in the United States have been plain, widespread and deeply to be deplored. ELECTION OF JUDGES FOR SHORT TERMS The election of judges for short terms accounts for many of these evils. Sev eral states, notably the state of Michi gan, have had for a time good elective judiciaries; but the electors do not con sistently maintain the highest standards

of selection, and not nfrequently fail to re-elect the most admirable judges. Indeed, such a tenure of judicial office disregards some of the most obvious of human qualities. A judge who desires re-election cannot help considering what effect his conduct in the court-room and his published decisions will have on his re-election. As an elected judge grows older and therefore less able to resume practice, he inevitably becomes more timorous and less independent, par ticularly as he cannot look forward to any pension when he fails to be re-elected. It is perfectly plain that in the long run an elective judiciary cannot com mand the popular respect which an appointive judiciary commands; and the fact that the great majority of Ameri can judges are elective accounts in good measure for the dissatisfaction of the public with American judicial proce dure. With the enormous extension of ap plied science into commerce, trade, manufacturing and transportation, a new kind of advocate has found a place in the courts, namely, the expert wit ness; and from the frequent employ ment of such experts in both civil and criminal cases a new source of popular distrust and disaffection has appeared in the courts. Many suits involving large amounts of money turn on expert testimony; and the experts summoned on either side turn out to be not wit nesses but advocates. In patent cases the experts are practically additional counsel; and their statements are apt to be thoroughly contentious and as one-sided as those of counsel. Their action is apt to cause confusion, long delays and heavy costs, and in the end much public exasperation at the advan tages given rich litigants over poor, and the not infrequent defeat of justice. The public has received the impression