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It may be inferred from what has been said, that to the mind of the writer there exists in this State a comparatively simple and direct course of legal procedure in criminal cases, and that most of the improvements much desired in other jurisdictions are here available, and many of them have been in use for a long time. The Criminal Law Institute is engaged in the preparation of a model code of criminal procedure, and when it sees the light it seems to some of us that it will quite likely present a system more complicated than we now employ.

The subject has been presented in this article solely with regard to the higher criminal courts. Space has forbidden any reference to the inferior courts and magistrates, and also there does not exist such a body of complete information as would justify any attempted analysis of the work of these tribunals.


In response to a request made by a Committee of the State Bar Association to contribute an article to the Bar Journal, I submit here some observations on the important subject of the selection of judges. In view of the fact that a majority of the States of the Union have either elected new judges quite recently or elected governors and legislatures who will select their judges, the subject is surely timely.

The great responsibility of the judicial office under our system seems so to impress itself upon those who serve on the bench, by whatever method they may have been chosen, that good judges are the rule, and the exceptions to the rule are happily rare. Fortunately, this has been so from the beginning of our history as a nation, and there is no imminent danger of a change in this respect. All through the period of our national life thus far, just judges “learned in the law”, have administered justice and construed legislative Acts with a due sense of the importance of this function in our governmental scheme. The expression "learned in the law", has not been construed to mean, nor was it ever intended to mean, that judges must necessarily be technically legal scholars, great expounders of the Constitution, commentators on the law, or lawbook writers. Such a requirement would be difficult, in most instances impossible, of fulfillment, and would be both unwise and unsatisfactory if insisted upon and carried into effect.

Judges deal in a most vital way with human affairs, and they themselves should be reasonably human so that their outlook

*Mr. Tilson is a member of the New Haven Bar, Representative from the Third Congressional District and Majority Leader of the House of Representatives in the sixty-ninth Congress.

upon the affairs with which they deal may be the human view. The deciding factor in many legal controversies is what a normal, reasonable person similarly situated would or should do. It is important that a judge should know intuitively if possible what such a person would do under such circumstances; so that the more clearly the judge visualizes this and the more instinctively he takes the human view, the better for the fulfillment of the ends of justice. In short, assuming character, which is basic, natural ability to comprehend the law which is essential, and a fair degree of knowledge of the law, which is necessarily a requisite, the human qualities of the judge are of paramount importance. The possession of these qualities is the distinguishing badge of what in all ages men have rejoiced to call the "just judge".

The question of the selection of judges resolves itself into one of determining how the best possible material, all things being considered, may be secured for the bench. It is a question of great moment, because upon it depends the closest approximation in an imperfect world to the attainment of the ends of justice and the highest fulfillment of the judicial function in our form of government. The two fundamental requisites for the judicial office are character and knowledge of the basic principles of the law. These being assumed, the qualification of the individual that is most important is the possession of what I have described as human qualities. The method of selection that in the greatest number of instances will secure these qualities in the greatest measure without the sacrifice of other necessary qualifications is the best method.

It is not my purpose to go deeply into the question as to what is the best plan for selecting judges, whether by popular election or by selection made by the executive, the legislature, or both, which are the methods now most in use. There are distinct advantages and some disadvantages in both the elective and appointive plans. The superiority of one method over the another depends upon a number of things connected with the nomination as well as election of the candidates for election on the one hand, and the character, courage, and free

dom of executives or legislators to carry out their own wills on the other hand. It is undoubtedly true that the same method of selection might not, does not, work equally well in different States or localities. The diversity in antecedents, traditions and customs of different parts of a large country makes this result inevitable. The end to be attained, however, is the same everywhere, and anything that may have a bearing or influence upon the result is necessarily important.

In just three-fourths of the States of the Union both the appellate and nisi prius judges are elected by vote of the people. In the selection of the Federal judiciary and in eleven States the judges are either appointed by the executive and confirmed by one or both branches of the legislature, or in some cases selected outright by the legislature. In Florida the judges of the Supreme Court are elected by the people, as is also the "county judge", while the judges of the circuit courts and criminal courts are appointed. It will thus be seen thaɩ the prevailing method of selection of judges is by popular election.

Those who advocate the election of all judges by popular vote emphasize the importance of the human qualities, and argue that election by the people is the only sure way to secure these qualities in the judges. It is contended that the people themselves whose most important rights are at stake in the trial of causes will see to it that those selected for this high office are possessed of the qualities and qualifications considered most necessary for the performance of their function. It will probably be conceded that the selection of judges by this method is the more likely to secure judges whose human qualities have become better known to the electorate.

Those who favor the selection of judges by executive appointment as a rule emphasize strictly professional qualifications and attainments. It is claimed for this method that a higher and better type of judge will be the result. Personally I have always believed that selection by a single executive is the better plan, but whatever may be understood by the descriptive comparisons just used, there is at least room for

doubt whether in the long run the claim is justified by the results.

One of the claims often stressed by those who advocate the appointive rather than the elective method of selection is that in this way the selection of judges from persons active in politics may be prevented. If true I should regard it as a telling argument against the appointive method, even though it has become quite fashionable in certain parts of the country to vociferate loudly against the selection of judges from this tabooed class of citizens. The tendency has gone so far in certain quarters that the hue and cry is readily raised against the election or selection of any one for a judicial position who is even suspected of being tainted with politics, as though the word "politics" meant "poison", and as though some great injury would be done to our judicial system in case any one so affected should find a place on the bench.

If by "politics" is meant what is sometimes described as "ward politics", meaning sinister and illegal manipulation of votes then, of course, the cry is justified. If, on the other hand, it is meant that persons who exercise their rights as citizens by taking an active part, even as partisans, in political elections or by discharging efficiently public duties when placed in political office, then I am prepared to dissent from such a proposition. If taking an active part in politics and holding political office are admitted as disqualifying men for the judicial office, then some of the greatest judges in the history of our country were disqualified.

The fact is that from the beginning of our Federal government, and especially during the earlier years of its history, it was the rule, with comparatively rare exceptions, to appoint to high judicial office only those who had engaged actively in politics, and who had filled with distinction important political office. It may be a surprise to some to be told that of the ten inen who have filled the position of Chief Justice of the United States Supreme Court, only one had not previously taken an active part in politics. More than half had served in one or the other branch of Congress, and sometimes in both, and one,

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