I.

IN THIRTY-SEVEN STATES of the
American Union, the Judges of the

trial and appellate courts are chosen at popular election by the qualified electors. In Connecticut, Georgia, Rhode Island, South Carolina, Vermont and Virginia, they are selected by the joint vote of both houses of the Legislature convened in General Assembly or Grand Committee. In three New England StatesMaine, Massachusetts and New Hampshire-the selection is by the Governor either in joint action with, or by him with consent of the Council, a special body created in those States to advise the Governor on such matters. In Delaware and New Jersey, they are appointed by the Governor, by and with the consent of the Senate.

Every American system providing for the selection and tenure of judges, except the Federal system, is fixed in the organic law or constitution of the Government, and therefore can be changed only by popular vote. In the Federal system, the personnel, tenure and selection of judges were fixed originally by the Judiciary Act of 1789 and since then by act of Congress, rather than by constitutional provision.

The number of States (11) now providing in their constitutions for the appointment or selection of judges by the Governor or Legislature is much smaller that formerly. Judge Simeon E. Baldwin, in his work on the American Judiciary, says:

(312) "Thirteen States in all originally gave to the Governor the power either of appointing or of nominating the judges of the higher courts; fourteen gave their election to the Legislature; the rest preferred an election by the people. If we compare the original practice in each State with its present practice, we find that there are now fewer in which the Governor appoints or nominates; fewer in which the Legislature elects; more in which the people do." Even since the publication of Judge Baldwin's work in 1914, the State of Mississippi, which in 1832 had adopted the Federal plan of appointment by the executive and confirmation by the Senate, by constitutional provision, made effective in 1916, again made Supreme Court judges elective.

II.

The present California system of electing judges after wide open primaries has proven unsatisfactory.

The voters of the State, or of a populous county or district therein, have

no adequate means by which to judge of the qualifications of judicial candidates. Under our present system of nomination, any person who can secure the requisite number of signatures to get his name on the ballot, may become a candidate for the highest judicial office. It may be safely said, that in the recent judicial election in San Francisco, thousands of men cast their votes for the wrong candidates, having been misled by a similarity of candidates' names. Furthermore, many other thousands voted for candidates of whose qualifications for judicial office, they knew absolutely nothing. Such a condition tends to the inefficiency and degradation of the judiciary, the most important element of our Government. What is the proper remedy for the evils that threaten? The majority of the lawyers and serious thinking men who have given attention to the subject, contend that resort to the purely appointive system is the only proper remedy.

Or course there are many good citizens who do not believe that the appointive system is the best. Their reasons for opposing it are that they consider the courts sufficiently powerful, and they fear to remove them further from the control of the voters.

Under our American system of written constitutions, the judges have a power absolutely unique, and vastly greater than that of judges in any other part of the world. The powers of the people are divided into three departments-the Legislative, Executive and Judicial. From the very beginning of our American system of government, the power of the Judicial Department has at times proven greater than that of either the Legislative or Executive Department. This feature of paramountcy is illustrated in those cases where courts of last resort have passed upon the constitutionality of measures enacted by the Legislature. Where the Executive or Legislative Department of an American State transcends its constitutional limitations, the recognized authority is in the hands of the Judiciary to declare the paramount law as written by the people themselves in their constitution. With that power in the hands of the judges, a majority of the electors be

lieve that the people should have in their own hands the ultimate control over the selection of judges. The modern tendency has been towards greater control over the courts and legislatures by means of the recall, initiative and referendum. While many thoughtful people deplore this tendency, it is idle to ignore it or to ignore the voting force which stands behind it. Accordingly, in seeking means to relieve ourselves of an unquestioned menace to our judicial system, we must think in terms of what is possible rather than of what is desirable.

As said by Mr. Carlos C. Alden, Progressive leader in the late New York Constitutional convention:

"Can we in some way, unite the best features of both an appoințive and elective judiciary and escape certain evils attendant upon both methods? I suggest that the Governor might appoint, and then the people at a subsequent election vote whether or not they will continue the appointee. If the vote is negative, the incumbent retires from office, and the Governor makes another appointment, subject to similar confirmation or rejection by the people."

The thought thus expressed was the basis of a movement undertaken at the session of the California Legislature in 1915. Senator W. F. Chandler of Fresno, during that session, introduced a proposed amendment to the Judiciary Article of our Constitution, providing that the Justices of the Supreme Court and of the District Courts of Appeal and the Judges of the Superior Courts should be appointed by the Governor and confirmed by the electors, and that their terms of office should commence on the first Monday after the first day of January next following their appointment and confirmation. The amendment further provided that "appointment for full terms shall be made during the month of July next preceding the commencement of the term for which the appointment is made."

This proposed constitutional amendment was known throughout the campaign waged for its enactment by the Legislature, as the "Chandler Amendment." The proposed amendment was actively advocated by the Commonwealth Club of California and the Bar Associations of Los Angeles and San Francisco. Notwithstanding the earnest efforts on behalf of the change the antagonism to

wards the appointive system of judiciary was so strong that it failed to carry in the Legislature. In reporting the failure of the amendment, the Commonwealth Committee said:

"Notwithstanding the failure to secure legislative approval of the Chandler Amendment, your committee believes that the agitation for some improvement in the manner of selecting our judges ought to be continued.

"Present conditions are all but intolerable. Judges are nominated by petition to which signatures are obtained largely through the personal effort of the candidate, directly or indirectly. The primary compaign which follows calls for incessant activity on the part of the candidate, who, is successful, thereafter must go through the turmoil of a regular election campaign. The whole proceeding puts a premium of selfadvertising and blatant methods. No one stands sponsor for a candidate, and in many cases his election depends not so much upon his fitness as upon his talent for getting his name before the people. This is particularly the case in the larger counties and in the election of justices of the Supreme Court and of District Courts of Appeal. In many instances candidates are compelled to incur obligations for assistance, financial and otherwise, that impair their usefulness on the bench. Few men give without expecting a return. Nor can judicial candidates go through such experiences without a loss of self-respect, nor without a lowering of standards in the eyes of the people.

"The one striking fact that the labors of the committee appear to have established is that the great majority of the members of the bench and bar are in favor of the selection of judges by some method of appointment. There is a wide divergence of opinion as to the best plan, but, with the principle established, men will sooner or later agree upon the means of applying it.

"Your committee believes also that a large part of the thoughtful men of the State, who have given the subject any consideration, are of the same mind."

III.

The plan of the Chandler Amendment should be re-submitted to the Legislature. If not approved it should be made the basis of an initiative measure to amend the constitution.

The evils averted to by the Commonwealth Club Committee are still with us in

intensified form. A remedy must be devised. The combination of proper nomination by the Governor and corrective control by a popular vote seems to be the only available solution of a very grave problem. The Bar Association of San Francisco, in concert with the Commonwealth Club and other civic organizations recently submitted to the Board of Supervisors, a similar amendment to our Municipal Charter in order to bring about correction of the deplorable police court conditions existing in San Francisco. As in the case of the Legislature, the local governing body refused to submit the amendment for popular vote. Personally, I favor an initiative measure to meet and correct the local conditions and I believe that the intelligent, well intentioned voters can be educated to understand and appreciate the importance and necessity of adopting some such measure to insure the efficiency and integrity of the Bench. The highest good of every honest element of the electorate demands such legislation.

The Chandler method of selection, first, by appointment by the executive and the election afterward by the people, was recently, after a campaign of intensive education, adopted by the electors of San Francisco, for the selection of members of the Board of Education, the governing body of the public schools of San Francisco. If the Legislature fails to propose an amendment along the lines suggested, an initiative amendment endorsed by the Commonwealth Club of California, the Bar Associations of the State and publicspirited organizations, should be submitted to the people for their votes. The campaign of education in behalf of the measure would, in all probability, be attended by a success such as met the local effort to introduce a similar innovation in the selection of the San Francisco School Board.

JERRY JIGGS'S decision to go to the Young Folks Jollification Club masked ball clad in a suit of iron mail was extemporaneous.

Jerry had drifted into Dad Cohn's place accompanied by enthusiasm in one hand and his precious invitation in the other. He greeted Dad with the familiarity of an old friend.

"No, I don't want to borrow this time, Dad. I've come to rent something nifty in the way of a masquerade costume! The committee has decided to hold the doings at Mathews' house 'n I want to speed up."

Daddy Cohn winked slyly.

"Bill Mathews has the prettiest house and the sweetest daughter in this town." Jerry glared. "What costume would you suggest?" he inquired icily.

A few minutes later, after much tugging and pulling, Jerry was given the pleasure of seeing himself for the first time in Scotch array. He gave one deep hungry look, followed by three short gasps.

"Them legs o' mine," he groaned. "Gee! Do I look like that? Great horn spoons! Am I that knock-kneed?" He pulled in frantic haste and embarrassment at the short plaid skirt, but it shied gleefully and Jerry's knees stayed bare. Even his dignity was eluding him.

A shepherd's costume was donned next, a shaggy rough thing that hung loosely from Jerry's thin shoulders. The youth stalked back and forth as he viewed himself in the mirror.

"Not so bad, Dad; not so bad. Only there isn't enough of it. The lines are graceful enough all right, but look at me! I pop out of the costume here, all over."

Jerry ran his fingers through his mop of red curls. "I guess I was built more for speed and endurance than for beauty. Dad, these costumes won't do. I'm a modest, retiring youth, and far be it from me to appear before the maidens and mothers of this village and make myself a guy. Haven't you got a costume that is built solid? Something nice and thick that folks can't see through? Understand, I want to be all covered up. All of me." Dad thought a moment.

"How would you like a suit of mail? That would cover your face and hands, too."

"Ah, an armored knight? Just the thing! Just the thing! Romantic and everything!" cried the boy. "Why didn't I think of that first. Trot it out."