University of Santa Clara - Redwood Yearbook (Santa Clara, CA)

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THE REDWOOD. 11 RECALL OF JUDGES (PRIZE SPEECH IN RYLAND DEBATE) Mr. Chairman, Hon. Judges, Ladies and Gentlemen : I intend to prove that the good to be obtainedl from the recall is worse than the evil it proposes to overcome. That the proposed cure does not cure, but only aggravates the diseases. That the recall will not elim- II ate the evils of our present system, but only intensify them. Justice Story once said that to de- stroy the independence of the judiciary was to destroy its usefulness. But, Mr. Chairman, this is just what will happen if we adopt this proposed re- call of judges. The bench, in order to apply the law as it is, must be abso- lutely free from outside influences; but under the recall this will not be so, it must, in order to retain its position, keep its ear to the ground to ascertain public opinion, and the consequences will be that our judges will not admin- ister the law as it is ; but as the people think it should be. And, gentlemen, we all know that the average citizen is not equipped either by experience or education, to determine what the law is; and a successful recall would not decide the question as to whether the judge decided the true state of the law as it is written in the books and ex- pounded by the courts. It is an in- justice to our judges to expect them to feel the public pulse before decid- ing a legal question. Public opinion is not, never has been, and never will be a factor which may be considered an element in interpretation. If it is once understood that the function of judge is to meet popular opinion as to what the law ought to be, his term in office will be exceedingly precarious, as this opinion is as changeable as the wind. He would be constantly having his ear to the ground, waiting for sug- gestions as to how the public would like to have a given case decided. Public opinion is rapidly formed and m the heat and passion of the moment the people will go to extremes. This is aptly illustrated by an example given by Curtiss Lindley. Some years ago two brothers were indicted, in one of our Central Counties, for murder. Ow- ing to the great public excitement caused by the crime, their counsel urged that the offenders could not be safely tried in that county and at that time. The trial court refused to change the place of trial. The Supreme Court, after reviewing the case, dispassion- ately held that the constitutional rights of the accused had been violated and over-ruled the trial court. The ink was hardly dry upon the opinion filed by the Supreme Court when the people assaulted the jail, took the prisoners out and hanged them. This illustrates the rapidity with which public opinion is formed and in how drastic and vici- ous a way the populace, when once aroused, may express its displeasure at the action of our judicial tribunals. The sword of recall hanging over the heads of our judges would simply be a temptation to intellectual dishonesty, depriving them of their independence and making them mere ministers to popular demand. And not, withstand- ing this, we are told that this measure IS for the best interests of the people of this state. Political freedom for our judiciary has been the cry in this state ; and any- thing that tends to destroy the free- dom of our judges will certainly not

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10 THE REDWOOD. A PETITION 01 OTHER, when the evening shadows Purple all the neighboring hills. In thy love and care confiding Peace my spirit sweetly fills. And when daylight softly gleaming Fills each vale with golden light, On thy strength and aid relying, Life ' s rough path seems glad and bright. Mother when my days are lengthened Into months, the months to years, May I feel thy loving presence Calming all my doubts and fears, And when down I lay life ' s burden. As eternity draws nigh, Then, O Mother, then be near me To receive my dying sigh. —Nicholas Jacobs.

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12 THE REDWOOD. promote the best interests of the peo- ple of this state. But under the recall system we will not take our judges out of politics, but push them further in. Mr. Chairman, England ' s common law is often held up as a model, and it has attained its high reputation, be- cause in the days of the revolution it was taken out of politics when the rev- olutionists insisted that the judges should hold office for life or during good behavior; because they placed the bench, not at the disposal of the kiog, but above the king. There the judiciary does not have to keep its ear to the ground to ascertain the public sentiment, but without fear or favor, it can devote its entire time to a strict, just, and fearless administration of the law. Now apply that, here under the recall; and what have you? You will find that you have placed the judiciary, not on the high plane of England ' s Bench, but where the public sentiment can put its foot on the neck of the judges ; where the will of the people, whether just or not, can take the judges by the scruff and throw them intp the street. Mr. Chairman, one of the greatest evils that the recall will bring, is that it will practically place in the hands of unscrupulous corporations, the judici- ary of our state. At first, this state- ment may seem ridiculous but on fur- ther examination we find that it is only too true. The newspapers of this coun- try are the moulders of public thought and they sway the populace whither they will. It would be easy for them to stir up the people so that a recall election would be demanded. And now, Mr. Chairman, the point is this, that all the large newspapers of this state, with the possible exception of one, are owned or subsidized by the interests. Our Primary law would go for naught. The people would elect their judges, but the interests would recall them through the medium of the subsidized press. Why, Mr. Chairman, this alone is so startling and appalling, when squarely met, that it should be sufficient to prove that the recall is not for the best interests of the people of this state. The amendment requires only 13 per cent of the registered voters to sign a petition in favor of a recall. The pe- tition shall contain a general statement on the grounds on which the removal is sought, which statement is intended solely for the information ci the elect- ors, and the sufficiency of which shall not be open to review. In other words a judge may be recalled for anything whatsoever, a racial feeling, a religious prejudice, and so a disgruntled minor- ity could obtain a recall election. It has been argued that a just judge need not fear, but this is begging the ques- tion, because how do you know that such will be the case? Just because the theory of the recall is, that it will only be called into use to protect the people against a bad judge? What guaranty can you give that it will not be called into being to harrass and in- timidate a good judge? There never yet was a two-edged sword that would not cut both ways. Mr. Chairman, there is not one man in all of our nine- ty millions in these United States, who would declare that our constitution should be changed, so as to permit the President in the White House or Con- gress in the Capitol to dictate to our judges what their decisions should be. And, coming back to our own state, there is not one here who couldi be