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But it is said that the unpopularity of the federal courts among the lawyers as a whole shows that the life tenure has a bad effect upon their character as judges. I agree that when a judge is thoroughly disliked by the Bar, who are his ministers and assistants, it is generally his fault, because he has much opportunity properly to cultivate their good-will and respect. Still, much must be allowed for in the impatience of the general Bar at federal judges, because there are many lawyers who appear but rarely in United States courts, are embarrassed by their unfamiliarity with the mode of practice, and feel themselves in a strange and alien forum.
There are substantial causes for the local unpopularity of federal courts and these exist without any fault of the judges. The chief reason for creating local courts under the federal authority was to give to non-residents an opportunity to have their cases tried in a court free from local prejudice before a judge who had the commission of the President of the whole country, rather than a judge whose mandate was that of the governor of the state where the cause was tried, or of the people of the county in which the court was held. In other words, the very office which they serve, that of neutralizing local prejudice, necessarily brings them more or less into antagonism with the people among whom such local prejudice exists.
A similar answer may be made to the charge against the federal courts, that they are biased in favor of corporations. This has grown naturally out of their peculiar jurisdiction. Throughout the western and southern states, foreign capital has been expended for the purpose of development and in the interest of the people of those sections. They have been able to secure these investments on reasonable terms by the presence in their communities of the federal courts, where the owners of foreign capital think themselves secure in the maintenance of their just rights when they are obliged to resort to litigation. While this has been of inestimable benefit in rapid settlement and progress, it has not conduced to the popularity of the federal courts. Men borrow with avidity, but pay with reluctance, and do not look upon the tribunal that forces them to pay with any degree of love or approval.
Then, an important part of the litigation in the federal courts on the civil side consists of suits brought to prevent infringement by state action of the right of property secured by the Fourteenth Amendment to the Constitution. Such action is usually directed against large corporations, who thus become complainants. If any such suits are successful, and state action is enjoined, it is easy for the demagogue and the muckraker to arouse popular feeling by assertion that the federal courts are prone to favor corporate interests. It is not the bias of the judges, but the nature of their jurisdiction, that properly leads litigants of this kind to seek the federal forum. The unsuccessful suits of this kind are never considered by the critics of the federal judiciary. Hence the plausibility of the charge. But it is unjust. In no other courts have the prosecution of great corporations by the government been carried on with such success and such certainty of judgment for the wrongdoer, and the influence of powerful financial interests has had no weight with the federal judges to prevent the enforcement of law against them.
Again, the litigation between non-resident railway and other corporations and their employes in damage suits has usually been removed from the state courts to the federal courts, where a more rigid rule of law limiting the liability of the employer has been enforced. This has created a sense of injustice and friction in local communities that is entirely natural, and has given further support to the charge that the federal courts are the refuge of great corporations from just obligation. It was the business of Congress to remove this by adopting an interstate commerce employers' liability act like that which is now on the statute book, giving the employes much fairer treatment, and by passing the workman's compensation bill which is pending in Congress and will I hope soon be enacted into law.
But it is said, "When you get a bad judge you cannot get rid of him under the life system." That is true unless he shows his unworthiness in such a way as to permit his removal by impeachment. Under the authoritative construction by the highest court of impeachment, the Senate of the United States,
a high misdemeanor for which a judge may be removed is misconduct involving bad faith or wantonness or recklessness in his judicial action or in the use of his judicial influence for ulterior purpose. The last impeachment and removal of a federal judge, that of Judge Archbald, was on the ground that he sought sales of property from railroad companies, or their subsidiary corporations, which were likely to be litigants in his court, and indicated clearly by a series of transactions of this sort his hope and purpose that such companies would be moved to comply with his request because of his judicial position. The trial and the judgment were most useful in demonstrating to all incumbents of the federal Bench that they must be careful in their conduct outside of court as well as in the court itself, and that they must not use the prestige of their judicial position, directly or indirectly, to secure personal benefit. Mr. Justice Chase was tried in Jefferson's time for gross improprieties of a partisan political character calculated to cast discredit on his court. It would seem in this day and generation that he ought to have been removed, but the spirit of the impeachers was so partisan and political that it frightened many of the Senators and neutralized the improprieties that were made the subject of the impeachment articles. It was this case which evoked from Thomas Jefferson the comment that impeachment was "the scarecrow" of the Constitution, and that it was impracticable as a means of disciplining judges. Under the ruling in the Archbald case and the evident tendency of the Senate, the criticism of Jefferson has lost much of its force.
The procedure in impeachment is faulty, because it takes up the time of the Senate in long-drawn-out trials. This fact is apt to discourage resort to the remedy and has lessened its proper admonitory and disciplinary influence. The pressure upon both Houses for legislation is so great that the time needed for inquest and trial is grudgingly given. An impeachment court of judges has been suggested, but the public would fear in it lenity toward old associates. The wisdom of having the trial by the higher branch of the Congress, entirely free from the spirit of the guild, commended itself to the framers of the Constitution
and is manifest. A change in the mode of impeachment, however, so as to reduce materially the time required of the Senate in the proceeding would be of the greatest advantage. If the whole Senate were not required to sit in the actual trial, and the duty were remitted to a committee like the judiciary committee of that body, whose decision could be carried on review to the Senate in full session, the procedure might be much shortened. The Judicial Committee of the English Privy Council is now a supreme court for colonial appeals, probably having its origin in the difficulty of assembling the whole Council to attend to litigated causes. The English House of Lords is a court, but sits only with the Law Lords, who are really a judiciary committee of the Peers to act as such.
It has been proposed that instead of impeachment, judges should be removed by a joint resolution of the House and the Senate, in analogy. to the method of removing judges in England through an address of both Houses to the King. This provision occurs in the Constitution of Massachusetts and in that of some other states, but it is very clear that this can only be justly done after full defense, hearing and argument. Professor McIlwain of Harvard has written a very instructive article on the subject of removal by address in England, in which he points out that this is a most formal method, and that in the only case of actual removal of a judge by this method a hearing was had before both Houses of Parliament quite as full, quite as time-consuming and quite as judicial as in the proceeding by impeachment. Advocates of the preposterous innovation of judicial recall have relied upon the method of removal of judges as a precedent, but the reference only shows a failure on the part of those who make it to understand what the removal by address was.
By the liberal interpretation of the term "high misdemeanor," which the Senate has given it, there is now no difficulty in securing the removal of a judge for any reason that shows him unfit, and if the machinery for holding the trial could be changed from the full Senate to a judicial committee, with the possible appeal to the whole body, impeachment would become a remedy entirely practical and effective.
One who is convinced that the federal judiciary, both supreme and inferior, because they are appointed and hold office for life, are the greatest bulwark in the protection of individual right and individual liberty and the permanent maintenance of just popular government, must have a strong personal resentment against any member of that body who in any way brings discredit on the federal judiciary and weakens its claim to public confidence. I feel, therefore, no leniency or disposition to save the federal judges from just criticism and I am far from making light of serious charges against them or of defects that have cropped out from time to time.
Some local federal judges are not sufficiently careful to avoid arousing local antagonism in cases where they have a choice as to the method of granting a suitor relief. Congress has taken steps in this direction so that one judge is not enough to authorize an injunction where it is sought to prevent the enforcement of a state statute claimed to violate individual rights.
Again, the patronage that judges have exercised has disclosed a weakness that can be prevented by changing the system. Judges now appoint clerks and the relation established between the judge and the clerk is so close and confidential that it is often difficult to secure from the judge the proper attitude of criticism toward the clerk's misconduct. I am convinced that the clerks ought to be appointed by the Executive, be brought within the classified civil service, and be subject to removal for cause either by the Executive or by the judge.
Abuses have grown out of court appointments to receiverships and to other temporary lucrative positions. It would be well if possible to relieve the judges of such duties. In the case of national banks, the receivers are appointed not by the courts, but by the Comptroller of the Currency. I think it might be well in the case of interstate railroads, the creditors of which seek relief in the federal court, to have the receivers appointed by the Interstate Commerce Commission. Patronage is very difficult to dispense. It gives to the court a meretricious power and casts upon it a duty that is quite likely to involve the court in controversies adding neither to its dignity nor its hold upon