From 80 Years Ago, A Plea to Depoliticize the Bench

I continue my review of the Wickersham Commission reports from 1931.  Interestingly — and I think correctly — the report on criminal procedure asserts that the quality of the rules of criminal procedure is less important than the quality of the personnel working in the criminal-justice system.  (Coincidentally, we touched on this point last week in my Crime and Punishment in American History course, when I asked students whether they thought any procedural reforms would have prevented the horrific miscarriages of justice at the Salem witch trials.)

Given its focus on personnel, the report’s leading recommendation is perhaps not a surprise, even though it would still be a very timely recommendation today:

Above all there is need of a change of attitude both in the legal profession and in the public as to the mode of choice, tenure, and personnel of the bench. . . . [E]ven where judges are appointed for life, appointments are too much in politics.  Something more than a change of selection is called for.  The public must be thoroughly convinced of the need for removing the administration of justice from politics and of insisting that appointments be made on the ground of conspicuous fitness alone, so that no appointing power will think of choosing a judge or magistrate on any other basis.  (45-46)

I am not a fan of an elected judiciary, but I also like the report’s implicit caution that appointment systems are not intrinsically superior.  It is hard to say, for instance, that the current federal system for appointment of judges is a depoliticized one.

Can the public be “thoroughly convinced” that “fitness” should be the sole criterion, in lieu of politics?  A major difficulty, of course — then and now — is that the line between “fitness” and “politics” can be very uncertain in practice.  If a judicial candidate, for instance, takes a hard line against the Fourth Amendment exclusionary rule because it sometimes lets guilty defendants walk free, is the candidate demonstrating fitness or politicization?  I imagine there would be strongly held opinions on both sides of the question.