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ciation; if the Association requires that, as the duty of this committee, I do not hesitate to say in behalf of the committee that we will undertake it and discharge it faithfully and to the best of our ability.
Alfred Hayes, Jr., of Ithaca:
Mr. President, I feel it will be necessary for me to explain in a word why I shall vote against this resolution. There is no question that interests me more than the mode of selection of our Judges. I think the fundamental objection to this resolution is that it proceeds upon the assumption that the political position of Judges is immaterial. Because I believe that this action will tend to prevent the selection of Judges from being at all dependent upon their political views, I shall vote in the negative. In the choice of Judges more and more I think it will be necessary to take into account their fundamental beliefs if the will of the democracy is to be registered. This results from our very peculiar constitutional provisions which, unlike those of any other country, enable judges to declare invalid legislation relative to social issues, to the conditions of labor, and to philanthropic plans for community betterment, so that the necessary effect of such decisions is to create a very considerable feeling in large sections of the community that the constitutional interpretations are not in accord with modern economic methods. It seems to me that it is proper for every lawyer to be influenced in the selection of the Judges by their economic and social point of view, because it is that point of view, as Professor Pound very ably pointed out in a lecture at Cornell University on the influence of Puritanism on the law, which results in intensely individualistic decisions. I believe that as a rule candidates for judicial office should be nominated by both parties.
To-day in this country we have no real radical party, we have a progressive wing in each party, but if, as in Germany, we had a radical party, or if, as in England, we had a real liberal and real conservative party, and I believe the day will come when that division will be plain in this country, then I should wish to cast my vote for the liberal candidates for judicial office. It is for that reason, not that I do not approve of activity by this body, because I do approve of activity by all influences in the community that make for good, but because I believe that the necessary effect of the participation of this Association in the nomination of judicial officers will be the sort of bi-partisan arrangement made last year, which I greatly regretted, which made it really impracticable for certain kinds of thought in the community to be expressed in that election with reference to the selection of Judges, it is for that reason that I shall vote in the negative.
Ansley Wilcox, of Buffalo:
Mr. President, most lawyers, and I think most people in this country believe that Judges should be selected because of their knowledge of the law, because of their high character, because of their ability to administer justice between man and man, and between men and corporations, without regard to their political views. I thoroughly and entirely dissent from the sentiment expressed by the last speaker, that we should attempt by any means whatever, to pack our Courts in favor of a political doctrine.
It will be fatal to this country, to our Constitution, to our liberties, if the time ever comes when the people vote for Judges and succeed in electing Judges because of their personal views on social or political questions,- just as it will be fatal to this country if it adopts the doctrine held
by some people, and, I am sorry to say, people of influence, that Judges should be recalled from their high position because they will not follow the waves of popular sentiment upon social or political questions. If that doctrine ever prevails, it will be fatal to our institutions. (Applause.)
But that is a great subject, Mr. President, and I do not propose to debate it now. I only want to enter a protest.
I am sorry that the program has not been arranged so that the report of the committee of which I have the honor to be chairman, the Special Committee on Judicial Candidates, the method of voting for them, etc., does not come up in connection with this report on Judicial Nominations, to be debated at the same time. The two subjects are closely related, and have an intimate bearing on one another.
Unless there is some objection, the report of the Committee on Judicial Candidates, and the method of voting for them, will be considered.
That subject is a pretty large one to take up at this late hour in the forenoon. It might be better to leave this present subject open and continue it this afternoon, when I hope we may have more time.
Francis Lynde Stetson:
I hope that will not be done. I think we are pretty nearly ready to vote on this matter. When Mr. Wilcox's report and bill comes up, if there is any modification it can come in at that time. Let us dispose of this particular subject.
I am content. I would like, then, to say a few words on this subject, and possibly may anticipate some things which will appear before the Association this afternoon.
The report of our Special Committee on Judicial Candidates, as those who heard the discussion last year know, has nothing to do with nominations, but undertakes to deal with the election of judicial candidates,— the method of voting for them. It leaves the vexed question of nomination entirely free for discussion; but after nomination, that report undertakes to create a system by which judicial candidates may be removed from the political arena during the election. Our bill provides that all judicial candidates shall be taken from off the party columns where they are now placed as mere party candidates, and shall be arranged alphabetically on an entirely separate ballot in New York City and in the sections where they still have the paper ballot, and in a separate column on the voting machines in Buffalo and other places where we vote by machines, at any rate, they will have to be voted for individually, without party designations. That is the plan proposed, and our report this afternoon will advocate it and advocate the bill embodying that scheme.
That plan has a bearing on the question now before us. The effect of that plan would be to take judicial candidates after nomination out of politics, to place them on a separate ballot, to indicate by legislative action they are not to be regarded as political candidates; and therefore it would give strength to the sentiment now prevailing among the Bar, that judicial candidates shall be nominated as well as elected upon non-partisan and non-political lines. The suggestions embodied in that report will be a great aid in
securing better judicial nominations, if those suggestions are again approved by the Association and can be forced on the members of the Legislature, or they can be persuaded to adopt the bill.
In regard to the nomination of Judges, I am thoroughly in favor of Mr. Stetson's proposition and the action of the New York City Bar Association, that lawyers should now begin to take action and prepare to exercise the influence that naturally belongs to them. Anything that can be done between now and the time when the offices of Judges of the Court of Appeals shall become vacant, will be a move in the right direction.
There is one practical suggestion which I have made to this Bar Association before, and which I want to repeat now, so as to keep it in the minds of the members. I believe there is merit in it. That is that the Bar as a whole ought to act in advance on all judicial nominations, under the sanction of law, through a scheme of legal primaries which will call all members of the Bar together when a vacancy is to occur in a judicial office, in advance of the nominations by other parties, and allow the lawyers to vote in secret, and name their candidates. I think it should compel lawyers to vote, by enforcing a penalty upon any one who does not vote and who cannot furnish to the Court a sufficient excuse.
Under such a law we would get the secret sentiment of the Bar upon the fitness of candidates for judicial office expressed in a way that would seem to encourage honest and independent voting. This would be a good place for the introduction of preferential voting, allowing each man to indicate his first and second and perhaps third choice. By this means a limited number of men approved by the lawyers could be submitted to the people as candidates.