If a judge could be
removed from office by a popular vote, whoever was desirous of
supplanting him would make capital for that purpose out of all his
judicial decisions; would carry all of them, as far as he found
practicable, by irregular appeal before a public opinion wholly
incompetent, for want of having heard the case, or from having heard
it without either the precautions or the impartiality belonging to a
judicial hearing; would play upon popular passion and prejudice
where they existed, and take pains to arouse them where they did
not. And in this, if the case were interesting, and he took sufficient
trouble, he would infallibly be successful, unless the judge or his
friends descended into the arena, and made equally powerful appeals on
the other side. Judges would end by feeling that they risked their
office upon every decision they gave in a case susceptible of
general interest, and that it was less essential for them to
consider what decision was just than what would be most applauded by
the public, or would least admit of insidious misrepresentation. The
practice introduced by some of the new or revised State
Constitutions in America, of submitting judicial officers to
periodical popular re-election, will be found, I apprehend, to be
one of the most dangerous errors ever yet committed by democracy: and,
were it not that the practical good sense which never totally
deserts the people of the United States is said to be producing a
reaction, likely in no long time to lead to the retraction of the
error, it might with reason be regarded as the first great downward
step in the degeneration of modern democratic government.
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