A Jury of Our Peers [excerpt]
Does not a measure of
recent legislation make it possible that the power of the United
States Courts can be for an indefinite period actually paralyzed?
Is it not likely that this measure will be generally utilized with
Judges of the greatest effectiveness and by law breakers of the
most atrocious character? Consider the crime of a Guiteau or a Csolgocz.
Let the accused be represented by reckless or desperate counsel.
A president, gentle and noble as McKinley, or learned, fervid, and
eloquent as Garfield, or a foe to graft, fascinating, inspiring,
dominating as Roosevelt, has perished by the hand of an assassin.
The world stands aghast at the crime. The assassin awaits the trial.
Every preliminary has been arranged. Then ten days before the trial,
section twenty-one of the new judicial code is invoked. What is
Whenever a party to any action
or proceeding, civil or criminal, shall make and file an affidavit
that the Judge before whom the action or proceeding is to be
tried or heard, has a personal bias or prejudice, either against
him or in favor of any opposite party to the suit, such Judge
shall proceed no further therein.
It matters not how frivolous
the alleged cause of personal prejudice. The statute is imperative.
With all the injurious consequences of delay, of public excitement,
and the furious  outbreak
which may result from frenzied passion of an outraged people, no
matter how perjured the oath, how paltry the pretext, how great
and causeless the delay, the Judge must descend from the bench,
another Judge must be designated. The illustration is, perhaps,
extreme, but the innovation is applicable to any case, to all cases,
and I believe that no other single measure of legislation can do
so much to cripple the effectiveness, the usefulness, and the authority
of our National Courts. The letter of the statute accords no hearing
to the Judge or to a party. Is this due process of law? Test it
by the definition of Daniel Webster—
By the law of the land is more
clearly intended the general law, a law which hears before it
condemns; which proceeds upon inquiry, and renders judgment
only after trial.
But more dangerous than
the power to disqualify a Judge is the uncontrolled power to disgrace
and defame him. My brethren, I ask you to consider if, in the utter
absence of all charges against him, the recently adopted method
of arbitrary and secret espionage or investigation of Judges, made
by Examiners, as they are termed, of the Department of Justice,
under the direct order of the Attorney General, is not to maltreat
American Judges with cruel and apparently callous indifference to
their reputation and good name?