In short, there will be no election to select a judge until by reason of a vacancy such course becomes necessary.

Under the present system of election for a definite term there is a constant round of elections being ground out when there is no popular call whatever for ninety per cent. of them.

The reduction in the number of elections for the purposes of selection will result in greater intelligence being concentrated by the electorate upon the problem of selection when it is presented. The issue of retirement also will be isolated completely from the issue of selection so that the former may be presented with the utmost directness and simplicity to the

voter.

Third. Where it becomes necessary in accordance with the above plan to select a new judge at an election, what method of nominating shall be used?

The possibilities are as follows:

1. Nomination by convention or directly by a county central committee.

2. By compulsory partisan primaries.

3. By nonpartisan primary and election.
4. Single election with preferential voting.
5. Nomination by the Governor

6. Nomination by bar associations.

None of these do or can result in selection by the people. Selection by the people is impossible. All the above methods tend to place a de facto appointing power in the hands of somebody.

Nominations by convention or county central committees tend to place the nominating power in the hands of the party political leaders. They make such nominations conspicuous and to a corresponding extent responsible. The party political leaders in convention will frequently nominate men of standing and character when such men would receive no support, or very little support, from the same political party leaders in the obscurity and confusion of a nomination by compulsory party primaries.

Nominations by compulsory partisan primaries not only tend to place the nominating power in the hands of political party

leaders, but the appointing power so conferred is obscure and less responsible and results on the whole in poorer nominations than the convention system.

The third and fourth methods of nonpartisan nominations and elections result either in chance, as the principal factor in the selection of the judge, in which case there is no responsibility whatever for the selection, or it results in selection by political party leaders, which is quite as obscure and irresponsible, if not more so, than the compulsory party primary.

The fifth method of nomination by the Governor is conspicuous and responsible, but is far from an ideal method of appointment. For a metropolitan district in particular, it violates the home-rule principle.

The sixth method of nomination by bar associations may turn out well or ill, depending upon the size of the bar and the character and influence of its leaders.

With the above conclusions before the community, or its representatives, let each community, or its representatives, select what method of nomination it prefers. The directors recommend none because the results which may be obtained are too uncertain and depend too much on local conditions.

THIRD PLAN.

ELECTION OF THE CHIEF JUSTICE FOR A SHORT TERM OF YEARS, THE APPOINTMENT OF ASSOCIATE JUDGES BY HIM AND RETIREMENT ELECTIONS FOR ASSOCIATE JUDGES AT STATED INTERVALS.

JUDGES ARE NOT AND CANNOT BE SELECTED BY ELECTION. ALL FORMS OF ELECTION RESULT IN APPOINTMENT. THE ONLY QUESTION IS, WHAT IS THE BEST METHOD OF APPOINTMENT?

The selection of judges by popular election not only does not in fact occur, but it is impossible, especially in a metropolitan district, that it should ever occur. Our assumption that judges can be selected at a popular election is the merest political hypocrisy. All efforts to secure the selection of judges by the people in such a district result necessarily in some de facto method of appointment, usually by the political party leaders. In rare instances, as in Wisconsin, it has developed appointment by the Governor and lawyers. These views have been more fully set forth in connection with the Second Plan of providing for both the selection and retirement of judges by popular election. (Ante, pages 10 to 21.)

It is a fundamental error, therefore, to suppose that the issue is between the selection of judges by appointment and their selection by popular election. Judges are only selected by appointment. The real issue, therefore, is between the different methods of appointment. The real questions which must be settled are: "What is the sound principle upon which to create an appointing power for the appointment of judges, and how far do our actual or proposed appointing powers conform to such principle?"

THE ATTRIBUTES OF A PROPER APPOINTING Power. There should be no difference of opinion as to the attributes of a proper appointing power. It should be vested directly in a legally constituted authority. That authority should be

conspicuous, subject directly to the electorate, and in the highest degree interested in and responsible for the due administration of justice.

PLAN OF APPOINTMENT BY AN ELECTED CHIEF JUSTICE

THE APPOINTING POWER.

The least objectionable method of appointment and the one which promises the most is that of conferring the appointing power upon the chief justice of the metropolitan court.

This chief justice must be subject at frequent intervals to the electorate both in the matter of selection and retirement. That means he must be elected for a comparatively short term say four or six years. This causes him to be subject to retirement by popular vote at the end of each term.

To this might conceivably be added the recall by popular election initiated by petition at any time. There may be something to justify this step on the ground that the power which appoints judges and directs the administration of justice by the court should be subject to the widest possible control. Nevertheless, the directors do not recommend such a recall provision for the reason that they fear that it would be used more constantly for the purpose of bringing political pressure to bear upon the chief justice by political party leaders, especially in the matter of making appointments, than it would be used by the electorate legitimately to subject the appointing power to their will.

The chief justice must also be in the highest degree interested in and responsible for the administration of justice by the court. This means that he must have large administrative powers over the activities of the associate judges.

Inevitably such an appointing power would be legally conferred and conspicuous to a high degree. Since the chief justice is elected from the metropolitan district which he serves, the home-rule principle is applied.

The plan is plainly an application of short ballot principle to the judiciary.

A precedent for this method of selecting judges exists in New Jersey. There the chancellor for the State at large, who

is appointed by the Governor with the approval of the senate for a term of seven years, is given power to appoint his vice chancellors to the number of seven, each for a term of seven years. This seems to have worked admirably in building up a court with an able and effective corps of judges.

The following extract from the letter of Mr. Charles H. Hartshorne, of Jersey City, N. J., dated November 4, 1912, explains the plan of administering the chancery jurisdiction in New Jersey:

The Constitution of New Jersey provides that "The court of chancery shall consist of a chancellor." The chancellor is appointed by the Governor with the approval of the Senate, for a term of seven years. He is usually reappointed, though it is an open question whether this office is an exception to the custom that judicial officers of the superior courts shall be reappointed, regardless of their political affiliations, so long as they are capable of giving efficient service. That custom has resulted in our having upon the bench of the higher courts, judges who have served for very long periods - twenty-five years and upwards.

A number of years ago, the work of the court of chancery having become too great for one judge to dispose of, a statute authorized the appointment by the chancellor alone (without confirmation by any other authority) of a vice-chancellor, as assistant. By further statutes, the number of these was increased to seven. The court now consists of a chancellor and seven vice-chancellors, who sit separately in different parts of the state. The vice-chancellors are appointed for seven-year terms. That bench is generally regarded as the strongest in the State and has given entire satisfaction to the bar and to the public.

The vice-chancellors hear interlocutory motions in nearly all cases under a standing rule of the court, but they conduct trials and final hearings only upon an order of reference from the chancellor. After trial they write the opinion of the court, which is usually reported, and advise the decree, which is then signed by the chancellor. No appeal lies from their decree to the chancellor, but all such decrees may be appealed directly to the Court of Errors and Appeals.

Theoretically, the vice-chancellors are merely referees who report and advise the chancellor, the decree being made by him upon their report. In actual practice, however, they are members of the court of chancery, in fact (but not in form), making the final decree of that court.

The system has worked very satisfactorily in respect to the character and attainments of the members of that bench, but the work of the court in populous cities is a good deal in arrear. This is due to the volume of business having outgrown the number of vice-chancellors.