Unpopular government in the United StatesKales, Albert Martin
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Unpopular government in the United States
Kales, Albert Martin
United States -- Politics and government
The principal objections to the appointment of judges have been that
they necessarily hold for life and become arbitrary and exercise
judicial power in a manner distasteful to the lawyers, their clients,
and a majority of the electorate. It will usually be found on analysis
that the objectionable exercise of judicial power by an appointed judge
is due to the fact that appointment means a life tenure. Hence the real
objection to the appointment of judges as such is that when appointed
they have held office for life. The entire objection, therefore, to
appointment may be met by limiting the tenure of the appointed judge
and by a variety of provisions for his retirement. He would, of course,
be subject to impeachment. He might very well in addition be subject
to some mode of legislative recall such as was proposed for the chief
justice. His term may be limited to five years or seven years, thus
requiring a retirement at the end of each period unless a reappointment
is made. The judge appointed by the chief justice may even be subject
to recall by popular vote according to one or the other, or both, of
two plans. The appointment might be for a probationary period--say
three years--at the end of which time the judge must submit at a
popular election to a vote on the question as to whether the place
which he holds shall be declared vacant. This is not a vote which puts
anyone else in the judge’s place, but a vote which can at most only
leave the place to be filled by the appointing power. Such a plan
must necessarily promote the security of the judge’s tenure if at the
popular election his office be not declared vacant. After surviving
such a probationary period his appointment should continue for--let
us say--six or nine years. At the end of that time the question might
again be submitted as to whether his place should be declared vacant.
If thought necessary further to protect the electorate from the bogey
of an appointed judge, he might be subject to recall at any time upon
the petition of a percentage of the electorate. But this recall, like
the other, should present only the question of whether the judge’s
place should be declared vacant, leaving the vacancy, if created, to
be filled by the appointing power. The danger in the existence of both
these plans of popular recall is that they may be used with more effect
by any extra-legal government of politocrats than by the electorate
at large. It is highly improbable that the electorate would find it
necessary or advisable to use either mode of recall. The presence of
either mode would, therefore, furnish a means whereby an influence of
the politocrats upon the judiciary could be continuously maintained.
Public-domain text, read in full here on John Shaqi.
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