By Judge Michael B. Hyman
Cook County Circuit Court
Aug. 6, 1912: At the National Progressive Party convention in Chicago, former President Theodore Rooseveltreiterates his belief that "the people" should possess the power at the ballot box of recalling judges as well as close Supreme Court judicial rulings on certain constitutional issues.
Every four years, candidates seeking their party's nomination for president become entangled in controversy, usually whipped up by their opponents or the viral power of the media. This year, several Republican primary candidates said or did things that generated ungenerous notoriety. Roosevelt suffered the same unpleasant scrutiny for stances he took during the 1912 campaign for president.
After winning nine out of 12 Republican primaries, Roosevelt was trounced by President William Howard Taft at the Republican convention. Roosevelt's supporters walked out of the Chicago Coliseum and organized the National Progressive Party (the Bull Moose Party) to ferry Roosevelt back to the White House. On Aug. 6, 1912, he gave his base what they wanted — a rousing acceptance speech, aiming a chunk of the 16,000-word address on the judiciary.
Roosevelt decried the difficult process of impeaching "incompetent" judges. He also expounded on his radical proposal that the final arbiter on some constitutional issues be the people instead of the highest court.
He briefly focused on his objection to impeachment as the sole method "to get rid of an incompetent judge." To Roosevelt "an incompetent judge" was a judge who acted other than "wise and upright."
His definition of incompetence included a judge "however virtuous" who "has grown so out of touch with social needs and facts that he is unfit" for the bench. That part of his definition would be a nightmare in today's ideological whirlwind.
The means of removing judges was less important to Roosevelt than finding alternatives to impeachment. He recommended that state bars and judges work together with their legislatures to find a more efficient method.
Although he favored an appointive judicial system, he probably would have approved the system we employ in Illinois — election followed by retention cycles that allows voters to decide whether to keep the judge in office. But, at the time, his position on removing judges from office was beyond the mainstream. More unusual and potentially divisive was his take on our Constitution and the right of the people, rather than the courts, to get the final say on certain constitutional questions. He said courts interfered with the legislative and the executive branches and should be restrained. He wanted "the people," following "an ample interval for deliberation," to make the final determination in those cases in which a high court split, finding unconstitutional social welfare and public policy questions.
Roosevelt proclaimed: "I deny that the American people have surrendered to any set of men, no matter what their position or their character, the final right to determine those fundamental questions upon which free self-government ultimately depends. The people themselves must be the ultimate makers of their own Constitution, and where their agents differ in their interpretations of the Constitution, the people themselves should be given the chance, after full and deliberate judgment, authoritatively to settle what interpretation it is that their representatives shall thereafter adopt as binding."
He said his proposal would "emancipate (the courts) from a position, where they stand in the way of social justice" and "emancipate the people … from the inequity of enforced submission to a doctrine which would turn constitutional provisions which were intended to favor social justice and advancement into prohibitions against such justice and advancement."
He sought to allow the electorate "to decide whether to follow the legislature or the court." He recognized, however, that achieving this objective on the national level would be impossible. When Roosevelt first announced his concept of "people as judge," the New York Times published a retort from a Republican trial judge, stating that Roosevelt was saying: "Let all things be decided first by the state courts, then by the United States Supreme Court, and then by the mob." Robert Todd Lincoln condemned what he called Roosevelt's "unchecked democracy," which he described as "a form of government … full of danger."
While his push to give the electorate the ability to remove incompetent judges has become a familiar reality, not so regarding "people as judge." Not only did "people as judge" earn broad condemnation at the time, but it never gained political credibility for many reasons including its rending of the basic fabric of state constitutions, subversion of judicial independence, potential deprivation of the rights of those in a minority and out-and-out politicization of the judicial decision-making process. Much of Roosevelt's vision of America has been thoroughly assimilated in our nation's life. The flat rejection of his "people as judge" proposition, however, should not be seen as a doomed quest. Rather this was an honest attempt to strengthen the public's commitment to democratic ideals. For that Roosevelt should be commended.