HKB
a state of things holding out any encouragement to that most audacious and profligate of all breaches of trust, even this entireness of constitutional dependence is but a weak protection.
Of all officers of government, those in whose appointment any participation of popular suffrage is the most objectionable are judicial officers. While there are no functionaries whose special and professional qualifications the popular judgment is less fitted to estimate, there are none in whose case absolute impartiality, and freedom from connection with politicians or sections of politicians, are of any thing like equal importance. Some thinkers, among others Mr. Bentham, have been of opinion that, although it is better that judges should not be appointed by popular election, the people of their district ought to have the power, after sufficient experience, of removing them from their trust. It can not be denied that the irremovability of any public officer to whom great interests are intrusted is in itself an evil. It is far from desirable that there should be no means of getting rid of a bad or incompetent judge, unless for such misconduct as he can be made to answer for in a criminal court, and that a functionary on whom so much depends should have the feeling of being free from responsibility except to opinion and his own conscience. The question however is, whether, in the peculiar position of a judge, and supposing that all practicable securities have been taken for an honest appointment, irresponsibility, except to his own and the public conscience, has not, on the whole, less tendency to pervert his conduct than responsibility to the government or to a popular vote. Experience has long decided this point in the affirmative as regards responsibility to the executive, and the case is quite equally strong when the responsibility sought to be enforced is to the suffrages of electors. Among the good qualities of a popular constituency, those peculiarly incumbent upon a judge, calmness and impartiality, are not numbered. Happily, in that intervention of popular suffrage which is essential to freedom they are not the qualities required. Even the quality of justice, though necessary to all human beings, and therefore to all electors, is not the inducement which decides any popular election. Justice and impartiality are as little wanted for electing a member of Parliament as they can be in any transaction of men. The electors have not to award something which either candidate has a right to, nor to pass judgment on the general merits of the competitors, but to declare which of them has most of their personal confidence, or best represents their political convictions. A judge is bound to treat his political friend, or the person best known to him, exactly as he treats other people; but it would be a breach of duty, as well as an absurdity, if an elector did so. No argument can be grounded on the beneficial effect produced on judges, as on all other functionaries, by the moral jurisdiction of opinion; for even in this respect, that which really exercises a useful control over the proceedings of a judge, when fit for the judicial office, is not (except sometimes in political cases) the opinion of the community generally, but that of the only public by whom his conduct or qualifications can be duly estimated, the bar of his own court. I must not be understood to say that the participation of the general public in the administration of justice is of no importance; it is of the greatest; but in what manner? By the actual discharge of a part of the judicial office in the capacity of jurymen. This is one of the few cases in politics in which it is better that the people should act directly and personally than through their representatives, being almost the only case in which the errors that a person exercising authority may commit can be better borne than the consequences of making him responsible for them. If a judge could be removed from office by a popular vote, whoever was desirous of supplanting him would make capital for that purpose out of all his judicial decisions; would carry all of them, as far as he found practicable, by irregular appeal before a public opinion wholly incompetent, for want of having heard the case, or from having heard it without either the precautions or the impartiality belonging to a judicial hearing; would play upon popular passion and prejudice where they existed, and take pains to arouse them where they did not. And in this, if the case were interesting, and he took sufficient trouble, he would infallibly be successful, unless the judge or his friends descended into the arena, and made equally powerful appeals on the other side. Judges would end by feeling that they risked their office upon every decision they gave in a case susceptible of general interest, and that it was less essential for them to consider what decision was just, than what would be most applauded by the public, or would least admit of insidious misrepresentation. The practice introduced by some of the new or revised State Constitutions in America, of submitting judicial officers to periodical popular re-election, will be found, I apprehend, to be one of the most dangerous errors ever yet committed by democracy; and, were it not that the practical good sense which never totally deserts the people of the United States is said to be producing a reaction, likely in no long time to lead to the retraction of the error, it might with reason be regarded as the first great downward step in the degeneration of modern democratic government.