Page:The recall of the judiciary in California. A summary of reasons against recalling judges at popular elections (IA recallofjudiciar00denm).pdf/6

 a two-thirds vote. This has not been efficacious in the past, because under the old convention system the “interests” owned the legislature. We are certain that now, under the direct primary, we shall have the same class of independent and able (if not always logical and consistent) legislators we had at the last session. We think that it is through that body, where the matter can be carefully sifted, that the people should obtain their purification of the courts.

We believe that a popular election is not the proper place to determine whether a judge should be recalled:

1. Because he is required by his oath to try cases before him according to law, even if the law’s provisions be unwise. The determination whether the law’s provisions are unwise and should be amended by the legislature, or the decision of the judge is an abuse of the law for which he should be recalled, is a question for experts and can no more be solved at a popular election than a question of strength of materials in building the City Hall, or of the skill of a physician in treating a complicated gunshot wound. For instance, it is safe to say that no layman within the sound of the reader’s voice can honestly say whether the law was at fault, or the court, in the Schmitz decision.

2. Because the best that can be expected of even a wise law is that it will bring about substantial justice in a majority of cases. Even the wisest laws will work substantial injustice, from humanity’s standpoint, in some cases. For instance, the millionaire’s foreclosure of a mortgage for a thousand dollars, which throws the aged widow of a respectable workman out of her cottage and sends her to the poor-house, cannot be regarded as substantial justice from the standpoint of common humanity. Nevertheless, the law of mortgage must be upheld, or our whole system of credit will fall. This is a gross instance of what constantly happens in a much more subtle way in the decisions of courts. The question of whether the special violation of substantial justice in enforcing a good law is inevitable or due to an impropriety on the judge’s part, is an expert question and cannot be solved at a popular election.

3. Because judges are human beings. We must take them as they are. If they are subject to the likelihood of facing a recall election for an unpopular decision, a considerable percentage will be influenced by those politicians and newspapers who most influence elections. We know that such politicians and such papers are often opposed to the best interests of the public.