Page:The Green Bag (1889–1914), Volume 19.pdf/706

 THE JUDGE AS A POLITICAL FACTOR elected; that he knows but little of, and consequently comes to care but little for, the upward struggle of the great masses of men. It argues that the longer and more stable his term of office, the more aristocratic will he become. It lays down as a cardinal principle the doctrine that in a democracy such as ours, in which the judge can set aside legislative enactments and determine great social governmental and industrial politics, he should understand, sympathize with, and be responsive to the great social and industrial movement and ideals of the day, and should above all be made to feel that he owes his position to the ballots of the people. The answer to this contention has been made by no less person than Mr. Justice Brewer of the Supreme Court of the United States. "There are to-day ten thousand millions of dollars invested in railroad property whose owners in this country number less than two million persons," said that jurist in an address before the New York Bar Association. "Can it be that whether this immense sum shall earn a dollar or bring the slightest recompense to those who have invested perhaps their all in that business and are thus aiding in the development of the country, depends wholly upon the whim and greed of the great majority of sixty millions who do not own a dollar? I say that so long as constitutional guarantees lift on American soil their buttresses and bulwarks against wrong, and so long as the American judiciary breathes the free air of courage it cannot. . . . What then is to be done? My reply is, strengthen the judiciary. How? Permanent tenure of office accomplishes this. . . . Judges are but human. If one must soon go before the people for re-election, how loath to rule squarely against public sentiment. ... To stay the wave of popular feeling, to restrain the greedy hand of the many from niching from the few that which they have honestly acquired, and to protect in every man's possession and enjoyment, be he rich or poor,

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that which he has, demands a tribunal as strong as is consistent with the freedom of human action, and as free from all influences and suggestions, other than are compassed in the thought of justice, as can be created out of the infirmities of human nature. . . . The black flag of anarchism flaunting destruction to property, and therefore relapse of society to barbarism; the red flag of socialism inviting a redistribution of property, which in order to secure the vaunted equality must be repeated again and again, at constantly decreasing intervals, and that colorless piece of baby cloth which suggests that the state take all property and direct all the work and life of individuals, as if they were little children, may seem to fill the air with flutter. But as against these schemes or any other plot or vagary of fiend, fool or fanatic, the eager and earnest cry and protest of the Anglo-Saxon is for individual freedom and absolute protection of all his rights of person and property. . . . And to help strengthen that good time we shall see in every state an independent judiciary, made as independent of all outside influences as possible, and to that end given a permanent tenure of office and an unchangeable salary." The balance of power in this great struggle however and the controlling vote belongs neither to capital nor to organized labor, but to the so-called middle class. The members of this class are swayed by many con flicting interests and considerations. They have no general sympathy for organized labor nor for its grievances. The idea of a permanent judiciary appeals to them. They are to be found continually criticizing the jury system, especially in criminal cases and the dead level of intelligence which it pre sents. They frequently refer with approval to the ease with which convictions are obtained in the Federal and in the English courts where the judge is such an important factor. But they are nevertheless almost as skeptical of the courts as even organized labor itself. They are constantly thinking