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men, provide for the election of judges as they now are elected, except that, for the purpose of filling out the intervals preparatory to the full and ordinary operation of the law, the shorter terms are to be filled by appointment. I think that the end to be attained, i. e., the elevation of the bench to the very highest degree of efficiency and dignity, it may be well argued, and it was well argued yesterday by our President, would be best attained by having an appointive judiciary. Now, it is a question for us to consider, which of those projects we should advocate, if any one of them—whether we should strike for the very best possible result at once, or aim at something lower and perhaps more easily obtainable. That is to say, it might appear to some that the legislature would not favorably consider at all a submission of an amendment calling for an appointive judiciary, while it might consider favorably one of the other two propositions or some proposition of like character calling for an elective bench. On the other hand, if either of the projects we have submitted, providing for an elective bench, should be adopted by the people after submission to the legislature, it would take an indefinite period, very likely, to effect the change to an appointive bench, should it be our ultimate aim. And if this Associa. tion really thinks that an appointive judiciary would give better results in all respects, then it may well be argued that we can not take too much time or use too much effort to attain that object without stopping at any half-way house.
These are simply suggestions that the committee has to offer, and we hope that they may become in this meeting a sub. ject of discussion and deliberation, and that it may seem desir. able to the Association to appoint perhaps a special committee to consider the question. Beyond this, gentlemen, the committee has nothing to offer at this meeting.
(Copies of the bills suggested by the Committee on Law Reform will be found in the appendir.)
The suggestions of this committee, gentlemen, are of such a nature that I quite concur with Mr. Johnson that it ought to be made the subject of discussion by the members present. We shall be glad to hear from any members or all members in reference to this question and the action that this Association should take in the premises. To start the discussion I will ask if Mr. Gast has not some suggestions to make to the Association on the proper method of securing this matter.
Charles E. Gast:
I listened to our President's address yesterday afternoon with a great deal of pleasure, as I am sure was the case with all the members of the Association who were present, and I was particularly impressed with that portion of it which emphasized the importance to every well ordered community of an independent judiciary. A judge should know no party. He should fear no class. He should be responsible to his own conscience, to his own intelligence, and to that only, and any judicial system that negatives this sense of independence or that puts a judge upon the defense of a judicial utterance when he is attacked on account of it, is, in my judgment, vicious. We have had an illustration of this within the last year. The Supreme Court of this state has been vilified and abused in some quarters, because its ideas of constitutional rights have not in all cases conformed to the notions and ideas of certain classes of our citizens. It has not been criticism; it is not discussion as to what is the right view or what is the wrong view of any particular question that has come before the court; it is simply abuse, and abuse of a kind that shows a sense of political disappointment—the non-fulfillment, as it were, of some political expectation. I think it is entirely proper for this Association during this meeting to give some expression against and to rebuke in the strongest terms that situation of affairs.
I have not carefully read or gone over these two proposi. tions that have been submitted. Personally, I am of the opinion that the ideal system is one in which the appellate judges, at least, are appointed for life or during good behavior; but I appreciate that public opinion is so tempered in Colorado and generally throughout the country that no such radical change in our judicial system can be said to be practicable. On the single prop osition as to whether judges should be appointed or whether they should be elected, I do not consider that a matter of the first importance. Under either plan we can get good or we can get bad judges. The important thing concerns their tenure of office--not how they come into office, whether by appointment or by election; and nothing will so fully bring about that state of independence which we all desire to achieve in the judges of our courts in Colorado as to so change the Constitution that the terms of their office shall be during life or good behavior. Whether they shall be appointed or elected is, I think, a matter of secondary importance. I think that a bill should be carefully framed upon these lines by this Association and submitted at the next meeting of the legislature.
George P. Steele:
This Association is undoubtedly unanimous on the proposi. tion that a political yardstick is not the true instrument for measuring judicial timber. Differences arise, however, when we come to consider methods for relief. I will stand up, perhaps as a minority of one, to oppose the doctrine either of appointing the judges for life or of electing them for life. The real trouble I believe we all appreciate, and that is the selection of our judges is too closely associated with political parties. Then the remedy should be to withdraw the election of judges from party politics. The chairman of the committee made no mention of what occurred to me as the best bill offered and the best suggestion made. That is the bill providing for the election of all judges on an occasion when no other offices were to be filled. Such a statute affords a practicable remedy; and would divorce the judiciary from partisan politics. It is difficult, if not indeed impossible, to get the constitutional amendment which would be necessary before either the tenure of the judiciary or their method of selection can be changed. You can not go before the people successfully with any constitutional amendment which will do either of those things, however much it may be desired. It seems to me, therefore, that we should resort to this idea. It is not new. The Constitution in terms permits the election of the judicial officers of this state at a time when no other officers are chosen. It is not certain that the life tenure or appointment plan would accomplish the desired result. If you elect a man for life tenure do you not increase the party strife? Do you not multiply the chances and the inducement for political trickery and chicanery in conventions, because the prize is greater and the stake is more eagerly sought? Is it better to elect a person for life than it is to elect him for six years or nine years? In other words, gentlemen, I do not think that that remedy divorces the judicial department from party politics. The other suggestion is that the governor appoint the judges. That is well enough in theory, but is it sound in practice? Are not our governors generally partisans? If you are going to adopt that system you must be sure, Mr. President, that your governor will regard the appointment of a judge for life as a sacred duty and not as a political plum. Would it not be placing in the hands of our governor additional ammunition for his political and
party schemes? I say that you can not get an amendment passed by the people of this state to our Constitution at this time. Therefore let us try what we can do. We have got something now suggested by this committee which requires no constitutional amendment and which could doubtless be favorably acted upon by the legislature. And it would divorce the judiciary of this state from partisan politics. The other can never be done until the time comes for adopting a new Constitution, and then it would be a worthy subject for consideration. But I think a great mistake would be made if ever it is left with the governor of this state to appoint all the judges either for a long term of years or for life. I think I see another advantage to this proposal of having the election on a separate and distinct date apart from general elections. If you adopt that system you absolutely force the political parties to nominate the best men. The only platform at such an election would be the dignity and honor of the bench and the administration of justice true and certain. There would be no other issue to come before any political convention for the purpose of simply nominating judges. Therefore I say you would force upon these conventions the nomination of the very best men who could be found in the various communities. And I say also that the tenure need not be long, because if a man is elected for six years under those conditions and circumstances and proved himself to be an efficient and worthy judge, his perpetuation in office is assured. And, on the contrary, if it is found that a mistake has been made, that the man for one reason or another is not a satisfactory judge, you haven't him saddled upon you for life and you may retire him to the ordinary practice of his profession at the end of a short term. Therefore, I say, Mr. President, that in my judgment, the more practicable and the more efficient remedy is this bill proposed by the committee, to have the election of judges take place when there are no other officers to be chosen.
John H. Denison:
I was formerly decidedly of the opinion that the appointing power by the governor would be the remedy for such particular evils in the judicial system as are supposed to exist. I have not entirely abandoned that opinion, but I think I have reached the conclusion that has been expressed by Mr. Gast, that the appointing power without a change in the tenure of office, if it would be any remedy at all, would be a very inadequate one. What has been said by Mr. Steele is an argument which will confirm us all in that conclusion, for we do know that our governors are usually partisan. We do know that more or less (some more and some less) they are governed by partisan considerations in all their appointments. We could not then by the mere power of appointment in this matter do away with the question of partisanship. The mere power of appointment, without doing away with that question, would avail us in one way only and that would be in putting the choice of the judge into the hands of some one who better knows the qualities which ought to exist in the judge and the qualities which do exist in the candidate than the general public. We should miss, in following the suggestions made by Mr. Steele, entirely what seems to me the principal advantage in a change of our law. I quite agree with Mr. Gast, as I said, that the great thing to be attained and the thing which we might well wait for even years and years, is the free tenure of office. I am not disposed to say that a lengthening of the tenure is of very much advantage, but a tenure of office during good behavior, commonly so called, or tenure for life, it seems to me, is the greatest advantage that can be given this state in an amendment to the judicial section of the Constitution. What does that mean? It means that whoever is appointed to that position is independent of all partisanship. We get rid of that entirely with the exception of what is irradicable in the nature of his appointment. But, above all, we get rid of any suggestion, and those suggestions will come into the mind of every human being, that any decision which he may make is going to affect his living, his position or his credit in the matter of any reappointment. So long as we sincerely pray “Lead us not into temptation," we ought to have that one thing separated from the judicial position. There is much more which I would like to say in reply to what Mr. Steele has said, but I am taking up too much time.
W. H. Bryant:
It seems to me that the Bar Association ought to do something now besides talking over theoretical matters. I think you will all agree with me that life tenure in this state is an impossibility at the present time. But we have had suggestions made which I think if we would recommend to the next legislature we can get something done. One of these bills changes the time of election of judges. That, I think, we ought to recommend. There are also two bills before us as to increasing the number of the Supreme Court judges. Now, it seems to me that we ought to take action to-day, either by referring the matter to a com