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SELECTION OF JUDGES AND THEIR TENURE

OF OFFICE.

PAPER BY
H. H. SWIFT,
OF COLUMBUS.

In discussing what method is best by which to select and obtain well qualified judges, consideration must also be given to the duration of the term of office and the compensation to be attached to the office. Proper remuneration for one who holds the office is as important a consideration as either any method of selection or as an appropriate tenure of office in securing good judges. The entire subject has been thoroughly and ably discussed before the Bar Association on several previous occasions. The last time was in 1909. Perhaps the Executive Committee in again assigning the subject for discussion, assumed that what was said as long ago as 1909 has been forgotten. In any event, I will be pardoned in narrating some facts, more or less known, and in giving expression to some old thoughts in the hope that present conditions will emphasize their application.

Experience being a good teacher, Georgia ought to be well qualified to determine how it prefers to have its judges selected. In the history of our judicial system, we have tried, for very considerable periods of time, having our judges elected by the General Assembly, appointed by the Governor with the advice and consent of the Senate, and for the past twenty-two years the present vicious and intolerable system of election by the people.

From 1777 to 1789, judges were elected by the “House of Assembly.” From 1789 to 1852, under the Constitutions of 1789 and 1798, up until 1852, the judges of the Superior Courts were elected by the General Assembly. Under the Constitution of 1798, the term of office was

fixed at three years. By an amendment in 1835, the Supreme Court was authorized, the judges to be elected by the Legislature for a term of office prescribed by law, and the term of office of judges of the Superior Courts was lengthened to four years. Although the Supreme Court was authorized by the constitutional amendment in 1835, it was not until 1845 that the Legislature could be persuaded to pass the necessary statute making possible the organization of the court. In 1852, the Constitution of 1798 was further amended so as to provide for the election of judges of the Superior Courts by the voters of the respective circuits for a term of four years. No change was made as to the manner of selecting judges of the Supreme Court and they continued to be elected by the General Assembly as they had been since the establishment of that court. Under the Constitution of 1861, provision was made for appointment by the Governor with the advice and consent of the Senate, of judges of the Supreme Court for a term prescribed by law, and of judges of the Superior Courts for a term of four years. Georgia never produced or had greater statesmen and patriots than those who framed the Constitution of 1861. The convention embraced among its members, such men as Robert Toombs, Benjamin H. Hill, Alexander H. Stephens, Linton Stephens, Herschel V. Johnson, George W. Crawford, Hiram Warner, Eugenius A. Nisbet, Henry L. Benning, Thomas R. R. Cobb, R. H. Clarke, and others of like character and attainments.

In 1865, the method of selecting judges was again changed by the Constitution of that year. Supreme Court judges were required to be elected by the General Assembly for a term prescribed by law not less than six years, and Superior Court judges were to be elected by the people of the circuit.

It is a peculiar coincidence that the carpetbag and republican Constitution of 1868 again restored the method of selecting both Supreme and Superior Court judges pro

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vided by the Constitution of 1861, the appointment by the Governor with confirmation by the Senate. Another noteworthy fact about the Constitution of 1868, is that for the first and only time in our history, something like an adequate tenure of office was provided for the judiciary, judges of the Supreme Court being appointed for twelve years and Superior Court judges for eight years. Perhaps the odium of the origin of this provision for longer tenure of office has, because of our prejudice, long prevented us from recognizing its great good and its essential need in obtaining an independent judiciary.

It was entirely natural when alien and republican rule was overthrown and Georgians re-claimed their State that reversion should have been made in the Constitution of 1877 to the method of electing judges by the General Assembly, a method which always prevailed prior to 1861 for Supreme Court judges, and which, for Superior Court judges had been in use for more than fifty years prior to 1852. That method at least had the merit of raising the level of capacity of members of the General Assembly because it attracted to its membership many aspiring and capable men who wished to become judges or solicitors general. Wise, however, as were the men who composed the constitutional convention of 1877, their judgments were warped by the then recent abuses the State had been suffering under the corrupt and extravagant rule of the republicans. Terms of Supreme Court judges were fixed at six years and Superior Court judges were given terms of four years, while for the first time, the Constitution undertook to fix salaries, and most meager salaries at that. In all previous Constitutions there had been a provision substantially to the effect that the judges should have salaries adequate to their services, fixed by law, which should be neither increased nor diminished during their term of office. Now it requires a two-thirds vote of each branch of the General Assembly proposing a constitutional amendment which in turn must be approved by

a majority vote of the people before the salary of judges can be changed.

A man who has never been a member of the Legislature can not conceive of the prodigious task of inducing twothirds of its members to vote for a salary increase for any office, no matter how meritorious the reason. In 1917, while a member of the General Assembly, I labored earnestly and faithfully to induce the House to agree to a Constitutional amendment increasing salaries of our Appellate Court judges from $4,000 to $6,000.00. To save the measure from utter defeat, an amendment making the salaries $5,000.00 had to be accepted. Nothing has contributed more to the difficulty of retaining good men on the bench, or of inducing lawyers of first rate ability, to desire places on the bench, than the wholly inadequate and meager salaries paid incumbents. Next to permanency in office, an appropriate and adequate provision for the support of the judiciary will best aid and encourage independence.

In 1898, the Constitution of 1877 was amended so as to adopt the present mode of electing our judges in Statewide elections. All other methods of electing judges have had some virtues, but when we elect them by the people for short terms of office, we deliberately impose upon ourselves a system without recommendation and incompatible with our scheme of government. Few men can talk to crowds and retain their virtue. Any argument for the election of judges by the people assumes that the administration of justice is a variable factor to be impressed and swayed by every popular breeze and impulse. Too much democracy carries with it the tyranny of ignorance and the prejudice of any numerous class seeking aggrandizement for its own selfish interests. Any man who would hesitate in rendering an unpopular judgment, is unfit to be a judge. Yet we fatuously and blindly shut our eyes to the weakness of human character,when we say to a man, “You must hold the scales of justice even and impartial, be not afraid of offending the mob by a righteous judgment today, although tomorrow you may have to ask approval of that same mob.”

In some States where there are nearly equally balanced political parties, the rivalry of the parties prevents the nomination of vulnerable candidates. In the South, even this ameliorating condition to popular election, does not prevail. The demagogue and the self-seeker have free play. The impulses of the people are unrestrained.

Every judge has to impose sentence upon criminals. Later, when he offers for re-election, he must seek the votes perhaps of those same criminals, or their friends and associates. Hence, in practically every county in the State, whenever there is an election for judge, the “blind tigers,” the “boot-leggers,” and the other lawless elements in the community are always arrayed in force against the judge in office seeking re-election. Well authenticated rumor has it that in the recent past the labor unions in Fulton County defeated an able lawyer and splendid judge because, in the trial of a labor agitator, he fearlessly discharged his duty with the lights before him. I have, myself, in my own county of Muscogee, seen many hundreds of striking working men misled and agitated by a foreign organizer, march in a body to, and completely overflow our court room, for the express purpose, announced by their leaders through the press, of impressing the Court and Solicitor, while engaged in the trial of some of their lawless fellows, with the power and number of their own votes. The American Federation of Labor is boldly and brazenly urging its four million members to elect only men as judges who will be sympathetic with and responsive to labor's demands. A system subject to such misuse and pressure for class favoritism deserves the determined opposition of lawyers and all good citizens. A tremendous propaganda is also being carried on by the labor unions for the amendment of the Federal Constitution so as to elect judges by the people with the avowed

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