The Man in Court | Page 9

firm but restrained. He may not be too
emphatic. Every inducement is toward making him lazy, fat, and easy.
Before him everyone bows and waits for him to speak. He is the
absolute boss within the four walls of his court-room. The only
restraining influences are the reactions from the lawyers and spectators
who are before him. Their opinions can not be openly expressed; they
are reserved until afterwards. If a judge really has any idea of the high
esteem in which he is held, let him find out what is being said of him
after the case is over, as the clients and lawyers are going down in the
elevator, or what the rear benches have been whispering.
He probably has a suspicion of this, but no matter how tolerant he
desires to be, there is the temptation to show that his authority is
supreme; that when the lawyers begin arguing a point on which he has
formed an opinion to cut them off; when the witness is trembling on the
stand as to whether the accident happened on a Thursday or a Friday, to
ask her, "Don't you know that Thursday was on the 16th of April last
year," which of course she does not. There is the temptation to feel that
he can never be wrong; that a question may be reargued, but that he is
not going to change his opinion.
The possibility is that the judge is a mild sort of bully. But it is not

always safe to go on the assumption that being a bully he is also a
coward. He may be, but on a trial the odds are too much in his favor. If
the lawyer wants to fight the judge, he has a great deal at stake; he may
awaken so strong a prejudice that the judge knowing the rules of the
game better than he does, may beat him on a technicality. On the other
hand it is a mistake for the lawyer to be subservient and too cringing.
Being a bully, the judge is apt to take advantage of his position. The
best policy is to appeal to his human instincts as a man. He may be
decent in spite of critics of the courts to the contrary notwithstanding. If
he is kindly treated he will respond.
In New York judges were appointed until about 1846, when there was a
popular upheaval and the constitution was changed, and they have ever
since been elective, with the exception of some of the minor courts.
The advantages of the two methods is an open question. The arguments
in favor of appointment are that it makes for an independent judiciary
and that it secures better men for the bench, whereas the other does not,
because the highest class lawyer will not go through the turmoil and
supposed degradation of a political campaign. These arguments are not
sound.
The argument for the election of judges is that it keeps the bench more
humane, modern, and in touch with the will of the people. The one is
the aristocratic idea, the other the democratic. A court as at present
constituted is an autocratic institution but the judges should be
democrats. A feeling prevails that the man who has gone through a
course of political sprouts involving the training of election campaigns,
is more understanding of the wants of the people whom he is to serve,
also that courts should be arranged on a business basis.
An amusing aspect of an elective judge is that he is in an anomalous
position. If he plays politics, endeavors to make friends either by his
decisions on the bench or obeying the mandates of a superior political
boss as to appointment of referees and receivers, he immediately
becomes a corrupt judge. The stench of his unjust decisions will sooner
or later come to the nostrils of the community and his chances of
reëlection are forfeited. He runs the hazard of charges and removal.

If, on the other hand, he forgets the organization that has elected him
either in the matter of patronage or the refusal of some desired court
remedy, and so conducts his court that there shall be neither fear nor
favor, he is a political ingrate and deserves neither reëlection nor
promotion. Of course these are the two extremes; fortunately human
nature is not what the sociologists and political theorists would make it.
The political boss is not the unscrupulous ogre that the muck-rakers
picture. He does not order the judge to decide the
hundred-thousand-dollar-contract case in favor of his hench man. He
might like to have him do so but he does not ask. Neither does the
judge lean over backwards in the other direction and imprison the
contractor because he is a friend of the