CHAPTER IV.

AMENDMENTS AFFECTING THE FORM OF THE JUDICIARY DEPARTMENT.

67. STATUS OF THE JUDICIARY.

Inasmuch as the Constitution contains less detail in regard to the judiciary department than upon either of the other departments of the Government, the opportunity for change has been slight, and hence comparatively few attempts have been made to alter the provisions of the Constitution. The judiciary has been also the most conservative branch of the Government, and has almost entirely refrained from encroaching upon the prerogatives of either of the other departments, hence it has been the object of attack only in exceptional cases. Most of the attempts to change the judiciary, as in the case of the legislative department, were made in the earlier years of our history under the Constitution. First appeared the movement to limit the jurisdiction of the Federal courts, which finally culminated in the eleventh amendment, forbid ding the United States courts entertaining a suit instituted by a citizen of a State against a State. Next came the only considerable attack on the judiciary, in the propositions for the removal and impeachment of judges. Various suggestions have been made to render judges ineligible to other offices and thus keep the court free from political entanglements. Attempts have been likewise made from time to time to secure the appointment of the judges for a term of years, and hence to enable the popular will more readily to control their action.2 The friction caused by the disputes between the States and the General Government called out several propositions for the creation of some tribunal other than the Supreme Court to decide such cases. Each of these subjects will be considered more in detail in the present chapter.

68. COMPOSITION AND NUMBER OF JUDGES.

The Constitution made provision in broad terms for the establishment of the judicial power and left Congress to create by

1 Bryce, 1, 267–271.

2 These were doubtless suggested by the growing practice in the States.

3 Art. III, sec. 1.

law the superior courts, and to fix the number of judges of both the Supreme and inferior courts. Accordingly, on September 24, 1789, Congress organized the judicial system of the United States. The Supreme Court was constituted with a Chief Justice and five associates. From time to time as it became necessary to extend the jurisdiction of the circuit courts, additional judgeships were created. In 1807 Congress added an associate judge; in 1837 two more, and one in 1863.1 Inasmuch as it has been possible to change the composition of the court by simple legislation, there have been but three attempts to secure a constitutional amendment on this subject. Two of these were resolutions in regard to judges of the Supreme Court and other courts, introduced by Mr. Williams of Pennsylvania, at two different times during the year 1867.2 They were doubtless suggested by the trouble existing between Congress and President Johnson over the reconstruction policy. There was a vacant judgeship in the Supreme Court in consequence of the death of Judge Catron in 1865. Congress was unwilling to have the President fill the vacancy, inasmuch as it was probable that the Supreme Court would be called upon to decide in regard to the constitutionality of the reconstruction acts within a few months after the introduction of the last of these amendments. Congress passed a law over the President's veto3 forbidding the filling of any vacancy until the number of associate judges should be reduced to six. Only one other amendment has been proposed on this subject. This was introduced by Mr. Whyte of Maryland, and proposed that the following section be added to the third article: "The Supreme Court of the United States shall consist of a Chief Justice of the United States and

associate justices, and of whom shall constitute a quorum." The number of the judges was left in blank, to be filled in according to the wisdom of Congress, but Mr. Whyte desired to place the number at thirteen. This was intended to relieve the judges from the pressure of work resting upon them, the court, owing to the rapid accumulation of cases, being months behind in its work."

By act of 1869 the number of the Supreme Court is fixed at one Chief Justice and eight associates.

2App., Nos. 1208, 1214. Text not given.

3 Mason's Veto Power, App. A, No. 67.

App., No. 1516.

The Fifty-first Congress passed a law establishing new courts and creating fifteen new judgeships, to remedy this matter

H. Doc. 353, pt 2—10

There is no apparent need of constitutional amendments to secure the control of Congress over the judiciary. The legislative department has power to organize or to disorganize courts at will but has only rarely made use of its power. The need, if any, is for an amendment to render the judiciary still more independent.1

69. CHOICE OF JUDGES.

In accordance with the provision of the Constitution, judges of the Supreme Court and the inferior courts are appointed by the President "by and with the advice and consent of the Senate." During the first ninety years of our history under the Constitution only four amendments have been proposed contemplating any change in the choice of judges. The first of these was introduced by Senator Hillhouse in 1808.3 It provided that the appointment of judges of the Supreme Court and certain other officials should require the ratification of the House of Representatives as well as the Senate. Ten years later Mr. Lewis of Virginia presented an amendment which proposed to reduce the power of the President materially, as by its terms all appointments to offices and vacancies "in the judiciary of the United States" were vested in the Senate and House of Representatives on joint ballot. No further amendments on this subject were proposed for nearly fifty years, when, in 1867, and again in the following year, Mr. Cobb, of Wisconsin, introduced a similar proposition for the choice of the judges of the Supreme Court. In addition, Congress should prescribe by law by what mode judges of the inferior courts of the United States and Territories should be appointed or elected.5

Within the last decade, in harmony with the general tendency toward popular election of Senators, United States marshals, district attorneys, revenue collectors, and postmasters, as shown by various resolutions, there have been a few attempts to secure the election of the judges of the inferior courts of the United States by popular vote. The first of these was intro

duced by Mr. Voorhees of Indiana.

1 Foster, Com. on Const., pp. 303–304.

Art. II, sec. 11, cl. 2.

3 App., No. 395, ante, par. 59

4 App., No. 476.

It made provision for

5 App., Nos. 1196, 1227; also limited term to eight years. See post, par. 72.

Probably suggested by the system in use in a large number of the States-at present thirty-one-of electing the State judiciary by popular vote. Bryce, 1, 505; Hitchcock, Am. State Consts., 47-60.

the popular election of judges of the United States district courts in such manner as the legislatures of the States should provide by law, as well as for postmasters, revenue collectors, marshals, and district attorneys.1

Two similar resolutions were introduced within the next two years.2

70. JUDGES TO BE INELIGIBLE TO OTHER OFFICES.

Two of the State conventions that ratified the Constitution3 incorporated into the series of amendments which they recommended a proposition prohibiting a judge of the Supreme Court "holding any other office under the United States, or any of them." This restriction without doubt was intended to prevent Executive influence over the judiciary, and to keep the judges free from prejudice in regard to any political or diplomatic question upon which it might be necessary later for them as judges to render a decision. This amendment was not suggested in the First Congress; and in 1794 Chief Justice Jay was appointed as a special envoy to England. Some objection to his appointment seems to have been made on the ground of his being the Chief Justice, which found expression in the resolution of the legislature of Virginia' proposing an amendment to the Constitution restricting judges from holding any other office or appointment whatever." Five years later two similar amendments were presented. The first of these was submitted by Senator Pinckney of South Carolina, February 3, 1800. It provided that neither the Chief Justice nor any judge of the United States should hold any other appointment or office "during his continuance in office as a judge of the United States, and that the acceptance of such other office shall vacate the appointment of any judge accepting the same."5 In ten days Mr. Livingston of New York introduced the other proposition. It forbade the appointment of a United States judge during his continuance in office or within six months after he may have resigned the same, to any other than a judiciary office under the United States. These were without doubt called out by the appointment in the previous year by Presi

App., No. 1526.

6

2 App., Nos. 1545, 1582. One by Senator George also provided for a fourteen-year term and removal for disability. See post, par. 72.

3 New York and Rhode Island. App., Nos. 72, 119. The Rhode Island proposition also proposed that Federal officers should be incapable of holding State offices.

4 App., No. 327d.

App., No. 335. McMaster, II, 474.

6 App., No. 337.

dent Adams of Chief Justice Ellsworth as one of the three commissioners to France. The business of the Supreme Court at this time was so small that the temporary absence of the Chief Justice would not have seriously interfered with its work.

Some of the resolutions introduced in more recent years, proposing amendments either in regard to the judiciary or the election of President and Vice-President, have placed restrictions upon the eligibility of the Chief Justice, and in some cases upon all of the judges of the Federal courts, to other offices. The one introduced by Mr. Ashley, in 1869, was the most comprehensive and restrictive. He proposed rendering a Federal judge ineligible to any office under the National Government. Mr. Powell included in his unique amendment, for the election of President by the electors out of their own number, a provision that no office should be incompatible with that of an elector except the office of Chief Justice of the United States. An amendment suggested by Senator Poland, in 1872, stipulated that no judge of any court of the United States should be chosen President or Vice-President within two years after the termination of his judicial office.3

The amendment reported from the House Committee on Elections in 1874, as well as Mr. Smith's substitute proposition, both of which made provision for the canvassing of the returns of the Presidential election by the Supreme Court, rendered a person who has been a justice of the Supreme Court ineligible to the office of President. A similar prohibition has been proposed on three other occasions.

The Edmunds resolution, as reported by the Committee on the Judiciary in 1876, which also provided for the canvassing of the returns and for the decision of contested-election cases by the Supreme Court, was less stringent. It stipulated that justices of the Supreme Court should be ineligible to the Presidency until two years after the expiration of the term of service. It was subsequently amended so that a judge of the Supreme Court was debarred from receiving appointments to

1 App., No 1315d. In his speech Mr. Ashley said, "One third or more (of the members of the Supreme Court) are crazed with the glitter of the Presidency." Globe, App., Fortieth Congress, third session, p. 210.

2 App., No. 1026. Ante, par, 47,

3 App., No. 1351. This amendment also made Senators and Representatives ineligible for the Presidency during their term.

App., No. 1386.

App., Nos. 1345, 1474, 1482. "App., No. 1423.