justice for sale

The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary 1846-1860, by  Kermit Hall  The Historian 46 (1983):  337-354.

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Kermit L. Hall is currently Provost and Vice Chancellor at North Carolina State University. Excerpted with permission of the author.
Between 1846 and 1860 a wave of constitution making rolled over the United States. Delegates to state constitutional conventions embraced a host of governmental reforms. The most significant of these involved the popular election of appellate and inferior court judges. Mississippi in 1832 had been the first state to adopt a constitution requiring election of all judges. When Alexis de Tocqueville visited the United States, the practice of electing inferior court judges was sufficiently widespread that it drew his attention and wrath. Nevertheless, the most important period of constitutionalization of the popular election of state appellate and trial judges occurred between 1846 and 1860. Of twenty-one constitutional conventions held during these years, nineteen approved constitutions that allowed the people to elect their judges. Only in Massachusetts and New Hampshire did delegates repudiate the concept, and in both instances voters rejected the delegates' work. On the eve of the Civil War, twenty-one of the thirty states had adopted popular election.

This transformation in the method of judicial selection immediately preceded a surge in judicial power by state appellate judges. . . Two explanations have been offered to explain this seeming paradox. First, most scholars have insisted that emotion prevailed over reason. Hurst, for example, attributed the delegates' motivation in adopting popular election of judges to an unthinking "emotional response" rooted in the "resistless demand" of Jacksonian Democracy. This view assumed that popular election of judges constituted a radical measure intended to break judicial power through an infusion of popular will and majority control. As an often-cited late-nineteenth century conservative critic of the elected judiciary observed, the reform "floated in on a rush of the stream of Revolution." . . . Notions of emotional radicalism run amok and political expediency muddles understanding of the motivation behind the constitutional politics of judicial reform. Scholars have created a paradox where none exists. . .

Constitutional conventions in the settled states devoted the most intensive consideration to reform of the judicial selection process. It commanded less attention in territorial statehood conventions for two reasons. First, territorial residents had chafed under the restraining hand of federal judicial appointees. As a pro-Republican Kansas editor explained in 1859, territorial residents had "suffered beyond imagination from the judicial despots who have lorded it over us. Of course, the [new state] judiciary will be elected." Second, a spirit of constitutional mimesis pervaded these statehood conventions. Delegates replicated extensive portions of state constitutions with which they were familiar. Members of the 1859 Wyandotte convention in Kansas polled themselves about the state judicial system they most admired. Ohio won the vote and the new Kansas court system bore the imprint of the Buckeye State. Delegates in the settled state frequently acknowledged the experience of other states, but they also pridefully believed that their own unique political, legal, and economic circumstances demanded a thoroughgoing analysis of elective methods. The judicial revision movement flourished in the free and slave states, although of the six southern conventions between 1846 and 1860, all but one--Louisiana--were held in the upper South. . .

The neat dichotomies of radical Jacksonian Democrats and conservative Whigs obscure the dynamic constitutional politics within the state conventions and ignore the overwhelming role of lawyer delegates in the conventions. In every convention, lawyers and judges of both parties for whom the method of judicial selection had personal and professional significance, controlled the committees on the judiciary. They also dominated debate over the issue once it reached the full conventions. Moreover, the attention devoted by delegates to election of judges fluctuated from state to state. The conventions in Ohio, Kentucky, and Virginia devoted a disproportionate amount of energy to the issue; conventions in Iowa, Louisiana, and Missouri gave it less attention. In only five conventions did the issue of popular election prove sufficiently controversial to require a roll-call vote before adoption. Only in Massachusetts did an effective bipartisan leadership of Whig and Democratic lawyers fail to materialize. . .

Concerns about the penetration of partisanship into the appointive judicial selection process reinforced worries about administrative efficiency and the status of the bench and bar. By the mid-1840s the second American party system thrived as part of a robust political culture in which the spoils of public office belonged to the victors. Judgeships were important items of patronage, but delegates from across the ideological spectrum criticized the party-directed distribution of these offices whether by the executive or the legislative branch. Radicals adopted a strong antiparty position. They believed popular election would prevent party leaders from dictating the composition of the bench. Conservatives also decried the infusion of party into the selection process, but they endorsed the appointive method as the best means of protecting property rights. Conservatives believed that the majesty of the judicial office coupled with the security of tenure during good behavior and fixed salaries mitigated the harmful consequences of partisan distribution by either the governor or the legislature. The office, conservatives believed, forced the judge to rise above his partisan beliefs.

Moderates proposed to adjust the judicial function to the intensely party-directed political culture. In doing so, they reflected the belief of many mid-nineteenth-century legal writers that partisanship could never be eliminated from the judicial selection process. Moderates did believe, however, that it could be controlled. Too often, moderates asserted, governors and legislators had distributed judgeships on the basis of "service to the party" rather than the "legal skills or judicial temperament" of appointees. The level of judicial administration and the prestige of the bench and bar had declined proportionately as courts became "asylums for broken down or defeated politicians." "Cliques and circles of a few politicians," concluded a moderate Massachusetts delegate, dominated the selection process while those lawyers who did "not belong to them, however well qualified . . . [could] never hope to rise to the bench."

Popular election, therefore, would strengthen the judiciary. Judges forced to run for office and seek reelection were more likely to "take care that their opinions reflect justice and right, because they cannot stand upon any other bases. Like conservatives, however, moderates concluded that a judgeship retained an aura of responsibility and even mystery that would keep its occupants from "being overcome by party feeling." . . .

Moderates built consensus among delegates by adopting constitutional devices that limited the potentially disruptive consequences of popular election. They made elected judges ineligible for other offices during the term for which they were elected, required staggered elections of appellate judges, provided that appellate judges be elected in circuits or districts rather than in at-large state elections, and granted fixed terms of office to judges during good behavior. By making judges ineligible for other offices, moderates prevented sitting judges from using their decision-making powers to campaign for other posts. Staggered terms, as one Indiana delegate observed, ensured that there could be no "revolution in law based on party feeling." The district or circuit election kept judgeships from falling under the direct control of party leaders in state nominating conventions, afforded differing interests in a state a modicum of representation and protection, forced judges to retain familiarity with legal practices peculiar to sections of their states, and allowed district residents to vote intelligently and, perhaps, along nonpartisan lines based on their familiarity with the candidates. Moderates also resisted radical demands for short terms of office for appeals court judges. They argued successfully that lawyers of ability would resist appellate court service if the terms were too short. In any event, tenure during good behavior was meaningless because few judges served more than a decade on the bench. The average tenure fixed under the new constitution was 9.7 years.". . .

The decision to elect state court judges was neither emotional nor expedient. It was an essentially thoughtful response by constitutional moderates in the legal profession to ensure that state judges would command more rather than less power and prestige.

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