While in the main the State and Federal courts operate each group in its own sphere and deal with the questions arising under the consti tution and laws of the government of which it is a part there is, as has been intimated, some overlapping of functions and jurisdiction. In the first place, any State court not even except ing the justice of the•peace is authorized and may be called upon to render a decision upon a question involving the construction of the Con stitution, laws or treaties of the United States. The power of the State courts to deal with these Federal questions need not be regarded as final, however, and an appeal lies to the United States Supreme Court itself. In the second place, in cases in which its jurisdiction rests upon diversity of citizenship, a court of the United States will frequently be called upon to construe and apply the provisions of State statutes or constitutions. In all such cases the Federal courts are bound to follow the con struction which may have been placed upon such statutes or constitutional provisions by the highest tribunal of the State.
Selection, Compensation and Tenure of Judges.— The judges of the United States courts of all grades are appointed by the Presi dent with the advice and consent of the Senate. They hold office during life or good behavior and can be removed from office only by im peachment. The chief justice of the Supreme Court receives a salary of $15,000 and the eight associates $14,500. Congress is forbidden by the Constitution to diminish the salary of any United States judge during his term of office.
The method of choosing State judges varies as might be expected in different States. Three general methods prevail. The first is election by the people. A large majority of the States use this method although it did not become Popular until the era of Jacksonian democracy. A second method is appointment by the gov ernor usually with the consent of the State senate. This method of choice was once very common but has lost ground throughout the States except in the East. The third way of choosing judges is by the legislature. This method was common in the early State con stitutions, but is now found in but four States, all of the older group. The relative merits of the choice of judges by popular election and by appointment by the governor are hotly de bated. In behalf of popular election it is ar gued, first, that it is the only democratic method and is necessary to prevent judges from be coming autocratic and irresponsible; second, the people know as much and usually more about the qualifications of judicial candidates than do the governors who must rely on the advice of party leaders; third, the courts in passing upon the constitutionality of ercise a function which is not wholly free from political aspects and which should, there fore, be performed under the scrutiny and ul timate control of the people; fourth, the alleged evils of popular election of judges may in the main be eliminated making judicial elections strictly non-partisan in form and procedure; finally, the choice of judges by the people has worked well in practice while many poor ap pointments have been made by State governors. The popular election of judges is attacked on the following grounds: First, the people have neither the knowledge nor the interest neces sary to pass upon the qualifications of judicial candidates. Second, since this is true there can
be no real popular choice of judges and what is called popular election is really the popular ratification of appointments to judicial posi tions made by irresponsible party leaders. Third, the qualities which make a good candidate in an election are not the qualities which make a good judge. This means that the best men fre quently fail of election while the unfit may suc ceed. Fourth, the sense of security and inde pendence which a judge must enjoy if he is to administer justice fearlessly and impartially is too often destroyed by the realization that de cisions which are unpopular even though sound may jeopardize his re-election. Finally, the ex perience of the Federal courts as well as of the State courts which are chosen by the governor show that in practice the method of appoint ment obviates the evils mentioned above and results in the choice of men of the highest ability and integrity. It may be observed that the bar of the country is fairly unanimous in its opposition to the election of judges.
The term of office of State judges ranges from life or good behavior to a few years. Life tenure was originally the rule has now become the exception since the principles and arguments justifying the popular election of judges also justify the practice of allowing the people an opportunity to retire them from office at the end of a fixed term of years. It is customary to choose the judges of the higher courts for longer terms than those of the lower courts.
There are three general methods by which State judges may be removed from office. The first and most common is the process of im peachment by the legislature. This method is available in every State except Oregon. The second is by address of the two houses of the legislature to the governor asking for the re moval. In such a case the judge in question is usually allowed some kind of hearing before either a committee of the legislature or the governor. The governor is not bound to re move a judge even though asked in this man ner to do so. This is not a common method of removal. The third method of removal is by recall by the people. There are five States (1919) in which judges may be recalled. Some States which permit the recall of executive offi cers have not extended it to the courts. Bitter controversy has arisen over the propriety of subjecting judges to the recall. It is urged in defense of the scheme that judges are, after all, merely servants of the people and that it is simply a natural and logical application of the principles of true popular government to make the judges feel their responsibility to the peo ple by giving the people an effective means of enforcing that responsibility. More conserva tive students of public affairs and especially the bar view the recall of judges with alarm. They argue that it will destroy the independ ence of the bench by exposing judges to the condemnation of the public for any unpopular decision they may render, no matter how firmly justified that decision may be by law. Thus the courts would cease to serve as bulwarks for the protection of individual liberty against the onslaughts of the majority.