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but it is true, nevertheless, and lawyers who will readily accept a federal judgeship will as readily decline a state judgeship. Then too, a federal judgeship attracts better lawyers than a state judgeship, by its larger salary-greatly enhanced by the privilege of retiring with full pay at the age of 70 and after 10 years service. It will not do to say that the privilege of retiring is a necessary incident of a life tenure, because the one need not be coupled with the other. In fact, during the first 80 years of our history they were not coupled; for though the judges have held their offices for life since our courts were first organized in 1789, no provision for their retirement was made until 1869.
I will even venture beyond this comparison between state and federal trial courts, and say that, considering the greater number from which its members may be drawn, the greater distinction of the place, and the larger salary attached to it, the Supreme Court of the United States, appointed by the President for life, has not greatly excelled the best supreme courts of our various states, elected by the people for a term of years. That statement must, of course, be understood as I have qualified it; and when so understood, it will not be seriously disputed.
In making his appointments to the Supreme Court of the United States, the President has before him the entire American Bar from which to choose, while in electing their supreme judges the people of every state are restricted to their own Bar. From this larger number the President can, of course, appoint greater judges to the Supreme Court of the United States than the people of any state can possibly elect to their highest court. Nor is the greater number of lawyers available the only advantage which the President in making his appointments enjoys over the people in holding their elections; for a place on the Supreme Bench of the United States is the highest judicial honor to which an American lawyer can aspire, and therefore the very greatest of them accept, though they seldom seek, that position. Besides those two advantages, but less than either of them, the salary, though not a princely one, and not as much as any lawyer qualified for that court could easily earn, is yet much more than the states are either able or willing to pay.
With the nation to choose from, with the highest of all judicial honors appealing to the ambition of our profession, and with a salary sufficient to gratify every rational desire, it is not strange that the Supreme Court of the United States should be composed of the nation's very elect. But great as that court is, the supreme courts of our various states, when all things are duly considered, do not suffer by a comparison with it. Indeed, that great court itself constantly testifies its profound respect for the supreme courts of these states by quoting their opinions to fortify its own opinion.
The federal judiciary itself furnishes an abundant proof that the quality of its judges depends more upon the number from which they can be selected, the distinction of their office, and the salary than upon the method of their selection or their tenure. The circuit judges are superior to the district judges, and the judges of the Supreme Court are superior to both the district and the circuit judges. That difference cannot be due either to the way in which they are selected or to the tenure of their office, because they are all selected in the same way and hold their offices for life.
Exactly the same condition prevails in all the states, for the character and the ability of their judges grade according to the dignity of their courts. Their district judges are superior to their county judges; their appellate judges are superior to their district judges; and the judges of their highest court are superior to all below them. That difference cannot be due either to the manner of their selection or to their official tenure; for they are all elected by the people for a term of years. I realize that we can never safely conclude that certain results are due to certain differences where other differences exist; and it will be difficult, or it may even be impossible, to satisfy any. man that the superiority of our federal over our state judges is due to the difference in number, distinction, and salary rather than to the difference in selection and tenure; but I believe that I can find a comparison which will eliminate from our minds all doubt on that question.
Let us compare our federal and our state legislative departments. Here again we find that, as a rule, the federal are superior to the state officers; but we do not find any difference
in the manner of selecting them, or in their tenure of office, because both Congressmen and state legislators are elected for a term of years. We do, however, find the same difference in number, in distinction, and in salary here as we found in the respective judiciaries; and must we not ascribe the same superiority to those same differences ? Certainly we cannot ascribe it to differences in the manner of their selection or in their tenure of office, because no such differences exist.
The two senators who represent a state in the Senate of the United States are chosen from that state at large, while each state senator is chosen from a small subdivision of it; and each member of the federal House of Representatives is chosen from a district which includes many of the districts from which representatives in the state legislature are chosen. A county in choosing its member of the legislature can only take the best man in it, but a Congressional district may choose the best man in any one of its several counties.
I do not undervalue our state legislatures, and I know enough about those assemblies to warrant me in saying that the common appraisal of them is much below what they deserve; but according to them the full credit to which they are entitled, the distinction of a membership in them is incomparably less than the distinction of a seat in either House of Congress; and that difference, even if there were no other, will always bring better men into the national than into state legislative service.
The disparity between the salaries of state and federal legislators is much greater than the disparity between the salaries of state and federal judges. State senators and representatives are paid such a beggarly pittance that it does not meet the expenses of decent living while they attend the sessions of the legislature; while our federal Representatives and Senators receive a sum which, notwithstanding the indifference with which some of them affect to regard it, is an ample compensation for their servicesample, indeed, that a majority of them could not earn in their ordinary pursuits as much as they receive from the public treasury.
These differences fully account for the superiority of our federal Congress over our state legislatures; and I do not hesitate to say that the superiority would be quickly reversed, if the numbers, the distinction and the salaries were reversed. If the state could select its state senators and the representatives in its lower house from any portion of it; if the honor of a seat in the legislature were greater than the honor of a seat in Congress; if the salaries now paid to Congressmen were paid to state legislators; and if the salaries now paid to state legislators were paid to Congressmen, the character of our state legislatures would immediately advance, and the character of our Congress would immediately deteriorate.
If it be true—and undoubtedly it is true—that our federal legislators are superior to our state legislators on account of the wider field from which they may be selected, the greater distinction, and the higher salary, may we not also conclude that the superiority of our federal judiciary is due to the same reasons, and not to the circumstance that they are appointed, and hold their offices for life?
The assertion that judges who are elected by the people will strive to please the people is not such a grave objection to an elective judiciary as many men suppose; because after all, the most certain way in which a judge can please the people is to do his duty impartially and fearlessly. That judges elected by the people have sometimes responded to the emotions of the people is true; but it is also true that judges appointed by an executive have sometimes yielded to pressure from that executive. I rejoice to say that such misconduct does not often occur in either case; but I am compelled to say that it has occurred in the one case as often as in the other. A judge who would do wrong to please the many who had elected him, would do wrong to please the one who had appointed him; and a judge with manhood enough to defy the executive to whose favor he owed his office, would never corrupt his conscience to conciliate the people.
The occasions on which judges who have been elected by the people have bowed before a storm of popular excitement, have been too rare to justify us in deducing a general rule from them; and viewing their conduct as a whole, it must be apparent to any unbiased mind that the people of these various states have elected their judges with a patriotic discrimination which has done much to justify our confidence in their capacity for selfgovernment. That the people have made mistakes in electing their judges is true, but it is likewise true that executives have made mistakes in appointing judges; and comparing the number of elections with the number of appointments, the mistakes of the one have not been more frequent than the mistakes of the other.
Acknowledging that our state judiciaries have been singularly free from the vices which are supposed to be inseparable from popular elections, many good men express their great surprise that what they consider a bad system has not evolved bad judges; but to me the reason is obvious. Good judges have been elected in most of the states, because their elections have been largely controlled by lawyers. You may say that this explanation admits that good judges would not have been elected, if the people themselves had controlled their election ; but even that suggestion does not successfully impeach the wisdom of the people, because in recognizing that lawyers can be trusted to select their judges, the people have exhibited a high degree of common sense. The average layman understands as well as you and I do that lawyers are generally familiar with the ability and attainments of each other, and therefore know which one of their number is best fitted for the Bench. It will always happen that some lawyers will be more or less influenced by their personal friendships or by their political obligations, but those friendships and those obligations are seldom extensive enough to be controlling, and the merits of the several candidates almost invariably determine the result.
Not only do the lawyers, through their personal and professional acquaintance with the candidates, know better than other people who will make the best judge, but they have a greater interest in the election of good judges than other people, and are, therefore, more certain to exert themselves in behalf of the best men.
Their interest may be a selfish one, but this is one of the few instances in which there is no conflict between the selfish interest of a class and the general interest of a community, because every lawyer's success, no less than every citizen's safety, depends upon having competent and upright judges.
Every lawyer of ability desires a competent judge, because he knows that such a judge will avoid frequent and serious errors, thus economizing both the labor and the expense of litigation;