Full text of Statements and Speeches of Robert L. Owen : Recall of Judges : Address Before the Bar Association of Muskogee, Okla. and Published in the Daily Oklahoman of Sunday, December 31, 1911

The full text on this page is automatically extracted from the file linked above and may contain errors and inconsistencies.

ADDRESS
BY

SENATOR ROBERT L. OWEN
BEFORE THE BAR ASSOCIATION OF MUSKOGEE, OKLA., AND PUBLISHED IN THE
DAILY OKLAHOMAN OF SUNDAY, DECEMBER 31, 1911, RELATIVE TO THE

R E C A L L OF J U D G E S .
P ee sen ted

by

M e . C h a m b e r l a in , J a n u a e y 11, 1912.

Mr. O w e n said:
Gentlemen of the bar, as a member of this association I take great
interest in this body and its deliberations. I made the first draft and
secured the passage of the bill establishing the United States court
for Indian Territory in 1889, and was the secretary of the first bar
association, which was organized at that time at Muskogee, Ind. T.
As a representative of Oklahoma in the United States Senate, I intro­
duced a bill (S. 3112) on July 31, 1911. providing for the election and
recall of Federal judges and discussed the matter on the floor of the
Senate, giving the reasons which, in my opinion, justified this reform.
The issue which was raised in this way has resulted in widespread
discussion on the question of recall, particularly in bar associations
throughout the Union, and naturally the bar, feeling a sense of
loyalty and affectionate regard for the bench, seems inclined to ques­
tion the wisdom of the judicial recall. But it also is true that many
judges of the highest distinction regard the judicial recall as essential
to the safety of the people and to the honor of the bench.
RECALL N O W OPERATIVE.

Since the members of the bar are taught to reverence precedents
and to believe that precedents, being founded on wisdom and ex­
perience, should not be ignored nor disregarded: I call your atten­
tion to the fact that the matured judgment of the American people
has found it wise to establish control over the State judiciary in at
least six different ways: First, by impeachment; second, by legisla­
tive recall; third, bv executive recall; fourth, by automatic recall by
fixed tenure; fifth, by popular recall; and sixth, by requiring judges
to submit themselves to popular vote for nomination and election.
Three States have four ways of recalling judges, to wit: Popular
recall, legislative recall, automatic recall by short tenure, and recall
by impeachment.
Thirty-five States have three ways of recalling judges, to wit:
Impeachment, automatic recall, and legislative recall.
Forty-eight States have two ways of recall, to wit: Impeachment
and either automatic recall or legislative recall.
Every single State has at least two methods of recall, either legisla­
tive or automatic and recall by impeachment. I submit a table of
the various States, indicating the recall by impeachment by one star
(*), impeachment and automatic recall or legislative recall by two
stars (**), impeachment, automatic recall, and legislative recall by
three stars (***), and States with four forms of recall—impeachment,
automatic, legislative, and popular recall—by four stars (****),
Arizona being included in the latter for good reasons, well understood.
31564°—12




J

2

ADDRESS BY SENATOR O W E N .

Recall of judges.

r<

How elected.

States.

Elected bv general assembly......................

Elected by voters............................................
........d o ......................................................
........d o ....................................................
....... d o ..................................................
Louisiana..................................................... ........d o ................................................................
M a in e ...........................................................
Maryland.....................................................
Massachusetts............................................
Michigan.....................................................
Missouri.......................................................

O h io............................................................. : : : : : d o : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :
....... d o .............................................: ..................
Rhode' Island............................................

Elected bv general assembly subject to
resolution general assembly.

South Carolina..........................................
South Dakota............................................
Tennessee................................................... ........d o .................................................................
T exas...........................................................
U tah .............................................................
Virginia.......................................................
Washington................................................
Wisconsin...................................................
W yom ing................................................... —

d o ................................................................

Forms of
recall.

***
**
****
****
**
***
***
***
***
**
***
***
**
***
***
***
***
***
**
***
**
***
***
**
**
***
*+
**
***
***
***
**
***
**
****
***
**
***
**
***
***
***
**
***
***
***
***
**

Term.

Years.
5
8
6
12
9
8
12
G
G
G
9

m

12
7
15
8
6
9
10

m

21
.................
8
G
8
G
6
2
12
6
12
10
8

i During good behavior.

New Hampshire lias been recalled four times.
The Cherokee Nation in Oklahoma provided for impeachment,
executive and legislative recall, and elected judges by popular vote.
For details see Thorpe’s Constitutions and remarks on this ques­
tion by me Monday, July 31, 1911, in United States Senate.
It will thus be seen that all of the States have at least two methods
of controlling judges besides requiring the judges to be elected in
nearly all the States. Most of the States have three methods of recall
besides requiring the judges to be elected.
RECALL A SAFEGUARD.

The reason underlying this universal constitutional control of the
judiciary is to safeguard the life, liberty, and property of the people
against the frailties of human nature, demonstrated bv history and
experience in an uncontrolled judiciary.
Great Britain in the act of settlement of 1701 provided for the recall
of British judges by act of Parliament, and has exercised this right




ADDRESS B Y SE NAT OR O W E N .

3

ever since, with the most satisfactory results, for 210 years. The
moving cause in Great Britain for establishing the legislative recall
was the brutal tyranny and unspeakable depravity of a lawyer named
George Jeffreys, who had been appointed lord chief justice of England
by James II. Jeffre3'S, for his unspeakable crimes, was sent to the
Tower of London, where he died; James II was run out of England,
and the bench of Great Britain has not been dishonored since by
such conduct as that of Jeffreys. I appreciate the suggestion of our
friend Hon. C. B. Stuart, in his ingenious address, that “ the lawyer
who will not defend judges when they are unjustly assailed, and who
will not shiver a lance for the upright and brave judiciary, is not
worthy to sit in the sacred halls of justice.” With this excellent sug­
gestion no man should take issue, especially when an upright and
brave judiciary is not assailed. I do not recall at this time any recent
assault on judges that has required any defense or of any defense that
has been made of judges unjustly assailed. There seems, however,
to have been an impression with some of mv friends of the bar that
my proposal of legislative recall of the Federal judiciary contem­
plated the popular recall of the Oklahoma State judiciary. I was not
aware, however, that there was any “ clamor ” in Oklahoma for the
popular recall of the State judiciary. I heard of this clamor for the
first and only time at this meeting.
Certainly, I have not advocated or even considered the question of
popular recall of judges in Oklahoma. Oklahoma has now the right
of recall by impeachment. Oklahoma also has the automatic recall
of judges by short tenure of office, which serves automatically to
remove any judge who may be inefficient or whose integrity might be
doubted by the people. Oklahoma has now a safeguard of having on
the bench judges nominated at the primaries by the people as accept­
able to the people and subsequently elected by the people as satisfac­
tory to them. The judges had the confidence of the people before they
were nominated, they had the confidence of the people before they
were elected, and I trust they will always deserve the confidence, the
honor, and the distinction they now enjoy. I wish to say, moreover,
that I have felt a special and peculiar pride in the Supreme Court of
Oklahoma, which already has won a very high place in the judiciary
of the States of the Union for the learning and the legal discrimina­
tion and for the splendid decisions of that court.
REASONS FOR RECALL.

The reasons justifying the legislative recall of the Federal judiciary:
The legislative recall by resolution of Congress of the Federal judi­
ciary is necessary and is based on the same identical reasoning upon
which 35 of the States have adopted this procedure for State judi­
ciaries. That is, that impeachment is too severe a remedy in certain
cases and is impracticable for offenses requiring removal but not
deserving impeachment. Impeachment should only be invoked for
actual personal corruption or serious criminal conduct; but the legis­
lative recall may be necessary and properly invoked even in cases
where there is no personal delinquency whatever. It may be invoked
for senility, for insanity, for imbecility, for paresis; or, again, it may
be invoked upon willful neglect of duty, for inefficiency, for gross in­
competency, for intemperance, or for any persistent, tyrannical,
malicious, or detestable conduct. Any or all of the>e things may




4

ADDRESS B Y SENATOR O W E N .

arise in the life of an individual, due to physical, mental, or moral
decadence.
Judges are only human beings after all, and a careful student of
statecraft, guided by the desire to serve the general welfare of the
people and of all the people naturally takes a different point of view
from the lawyer who has been on the bench or expects to be on the
bench and who can not bear tire thought of recalling a judge for any
of these causes. Yet, thoughtful men must concede that even a judge
on the bench may go through physical, mental, or moral decay. He
may become, in fact, a neurotic, a paranoiac, an epileptic. He may
become an imbecile, or be afflicted with softening of the brain, or with
general paresis. May Heaven defend our beloved judiciary from any
of these human afflictions; yet. if they should come, in whole or in
part, to any of our honored Federal judges, I intend to do what I can
as a public servant to defend the interests of the people against such
an unfit judge. I am not willing to impeach an honored Federal
judge who may be the victim of these unavoidable human afflictions,
but as a legislator it seems to be my duty to advocate a remedy which
is benign and easily invoked to protect Oklahoma and the United
States against Federal judicial incompetency. These reasons are
entirely sufficient to justify legislative recall, but there are other
reasons why the Federal judiciary should be subject to such recall
which are much more important.
DELEGATED PO W ER .

The Federal judges are not elected by the people. They are not
nominated by the people because of the confidence of the people in
them, as are Slate judges. They are not elected by the people be­
cause of the confidence of the people in them, as are our State judges.
They are nominated by a President of the United States, who him­
self is not nominated by the people, but is nominated by delegates of
the third and fourth degree of delegated power in national conven­
tion, who come with delegated power from State conventions: the
State conventions being composed of delegates delegated from county
conventions; the county conventions being composed of delegates
delegated from ward, township, or precinct caucuses or the most
part not safeguarded by law. The ward caucus as a rule in the
United States is controlled by a ward boss, who seizes the powers
of the unorganized, unprotected people of the ward and delegates it
to a ward henchman. The precinct delegates sent to the county con­
vention send machine delegates of the second degree to the State con­
vention, which often send machine delegates of the third or fourth
degree to the national convention, where these delegated delegates
of delegated delegates, resting on this uncertain foundation, nominate
as President a citizen who is four degrees removed from the people,
and when this President nominates a Federal judge for life this
Federal judge is five degrees removed from the people and subject
to no review or control by the people. The consequence is we have
established a Federal judicial oligarchy in this Nation, as Thomas
Jefferson forecast and prophesied in his letter to Jarvis in 1820. No
wonder the Federal judges, thus uncontrolled, undertook by judicial
decision to magnify their offices. No wonder Thomas Jefferson called
John Marshall “ a thief of jurisdiction.” John Marshall in Marbury
v. Madison insisted that to allow Congress to determine the con­




ADDRESS B Y SENATOR O W E N .

5

stitutionality of its own acts “ would be giving to the legislature a
practical and real omnipotence." John Marshall, therefore, assumed
the “ real omnipotence” himself by stealing the jurisdiction to de­
clare acts of Congress unconstitutional, a jurisdiction which was
four times refused to be granted to the Supreme Court by the Con­
stitutional Convention of 1787, to wit, on June 5, June 6, July 21,
and August 15, 1787.
Thomas Jefferson was right in denouncing this conduct. President
Jackson was right in refusing to allow this court to determine the
national policy for his administration in the United States bank case,
and the American people supported him because he was right and
because the American people knew more than the lawyers who hap­
pened by ingenious solicitation to have been appointed on this bench.
In recent years the most important national policies of the Nation
have been nullified or obstructed by the decisions of the Federal
courts, numerous State laws attempting to regulate corporations have
been nullified.
I N C O M E -T A X

LAW .

The income-tax law, demanded by 90.000.000 people, was nullified,
crippling the power of taxation of the National Government and dis­
criminating against the greater part of the people in favor of those
best able to pay and justly owing this tax for the protection they
receive.
This decision has cost the producing masses nearly $1,600,000,000
in the last 16 years, made the rich richer and the poor poorer.
The antitrust act has been emasculated in the Standard Oil case
and in the Tobacco Trust case. Standard Oil stock went up immediatelv after this decision, which was trumpeted in the press as a deci­
sion against Standard Oil.
The interstate commerce act has been greatly weakened, as I
abundantly set forth (Fee., -3701), July 31, 1911.
The compulsory arbitration act, passed as the result of the great
strike in Chicago in 1894, and intended to prevent the recurrence of
such unfortunate difficulties, was destroyed by the Supreme Court.
(Adair v. United States, 204 U. S. Rep.. 164.)
The employers’ liability act was held unconstitutional.
Over 200 Federal and State statutes have been held invalid by the
United States Supreme Court alone, and there are innumerable cases
where the lower Federal courts have nullified State statutes under
the shield of the Supreme Court decision. For example, the Okla­
homa constitution, establishing a corporation commission, was de­
clared invalid (Hook); the statute of Kansas taxing the Western
Union Telegraph Co. (216 U. S., 1); the statute of Texas taxing the
<rross receipts of railroad companies (210 U. S., 217) ; the Minnesota
statute regulating the rates of public service corporations (Shepherd
v. N. P. R. Co.), etc.
,
i ,
The fourteenth amendment, intended to protect the negro, has been
twisted from its purpose to protect the trusts and monopolies in
imposing long hours of labor on employees on the absurd theory that
to deny the employee the right to work long hours is a denial of his
constitutional “ privileges.” The obvious point of view of the court
is that a laboring man has such a constitutional right to work himself
to death; that public policy may not question it.




6

ADDRESS B Y SENATOR O W E N .
FAVORS T H E IN T E R E STS .

A whole series of cases could be pointed out showing that the point
of view of the Federal court is favorable to property interests and
unfavorable to manhood interests. After all, everything depends
on the point of view. If the Supreme Court should consist of nine
resolute Irishmen they would decide in favor of home rule for Ireland
and give the most learned reasons justifying this opinion. If the
court consisted of nine Tories they would give equally as learned
reasons against home rule and demonstrate it was a violation of the
fundamental law of Great Britain.
If the Federal judiciary is appointed for life and has the final word
on State laws, on Federal laws, on national policies, and can not be
recalled nor reviewed, then the art of government is reduced to this:
The art of nominating these judges. It is an open secret as to who
has developed this art in the highest perfection.
The plain truth is that the great powers in the organized financial
and commercial world skillfully contrive to nominate these Federal
judges and to nominate the President (who nominates the judges) by
the use of funds on a gigantic scale, secretly employed; by coercion
of employees, and by the far more sinister and dangerous method of
coercing the world of finance and commerce by the constriction of
credits which may at any time be carried to the point of a national
financial panic.
The Federal judiciary has, in my opinion, become the bulwark of
privilege and ought to be made immediately subject to legislative
recall by the representatives of the people for the safety of the people
and for the stability of the property of the masses—of the producers
of the Nation.
JU D IC IA L

IN F A L L IB IL IT Y .

The organs of privilege continually extol the judicial infallibility
of the Supreme Court and teach the people not to question it. The
truth is, however, that every time four out of five Supreme Court
judges are in the minority, their judicial fallibility is judicially ascer­
tained bv the United States Supreme Court. Each of the justices in
turn has his judicial fallibility judicially ascertained in case after case
until they are innumerable. And the singular condition exists that
the change in opinion over night of the vote of one judge, as in the
case of Justice Shiras in the income-tax case, may transfer the ascer­
tainment of the judicial fallibility of the four justices who first dis­
agreed with Judge Shiras to the four justices who first agreed with
Judge Shiras. In this wav his vacillating vote demonstrated by the
vote of the Supreme Court justices the judicial fallibility of those who
disagreed with him in the first vote and of the remaining four justices
who disagreed with him in the second vote*.
Thus the changing vacillating vote of one justice put all eight of
his associates in the minority in the two votes and thus proved by a
majority vote of the Supreme Court the fallibility of every member
except Shiras, whose first and second opinions were both confirmed
by a majority of the court. The claim of judicial infallibility is
ridiculous.
Public opinion demands control of the Federal judges The
Democratic platform, 1908. protests against government by the
injunctions of the Federal judges.




ADDRESS B Y SENATOR O W E N .

7

The Republican platform, 1908, declares against certain injunctions
by the Federal courts.
The Independent Party, 1908, condemns the arbitrary use of
injunctions and contempt proceedings as a violation of the funda­
mental American right of trial by jury.
The People’s Party of 1908 emphatically condemns the unjust
assumption of authority by inferior Federal court in nullifying State
law, etc.
The Socialist Party in its platform of 1908 declared “ Our courts
are in the hands of the ruling classes.”
But what difference does it make if the Republicans, the Democrats,
and all other parties protest if these judges are appointed for life and
can not be recalled?
The most learned lawyers and judges in the country have pointed
out this dangerous and mischievous condition, such as Walter L.
Clark, chief justice of North Carolina (Arena, November, 1907.)
Judge Clark said:
At the present time the supreme power is not in the hands of the people, but
in the power o f the judges, who can set aside at will any expression of the
people’s will, made through an act o f Congress or a State' legislature. These
judges are not chosen by the people, nor subject to review by them. This is
arbitrary power, and the corporations have taken possession o f it by simply
naming a majority of the judges.

Gilbert E. Roe (in La Follette’s, June-August, 1911) demonstrates
that these courts put the poor man at a disadvantage to the rich man
under the law, under “ the assumption of risk” by the poor employee
and the rule of “ negligence of a fellow servant,” etc.
Even President Taft, in his speech of September 16, 1909, said:
We must make it so that the poor man will have as nearly as possible an
equal opportunity in litigating as the rich man, and under the present condi­
tions, ashamed as we may be of it, this is not the fact.

It was the fatal decision of the Supreme Court of the United States
in the Dred Scott case, nationalizing slavery, which caused the Civil
War. Lincoln declared this decision was based on falsehood; that it
was unsound. There was no way to review it, no way to recall the
court, no way to amend the reactionary Federal Constitution, and the
most terrible war of the whole world followed because the people had
no remedy available.
LEGISLATIVE RECALL.

I believe that the people of Arizona, of Oregon, and of California
have a constitutional right to adopt popular recall in addition to
legislative and automatic recall if they see fit. They are a free peo­
ple, possessing full sovereignty, and have a right to choose their own
public servants and impose the conditions of the public service.
It is an open secret that in California the Southern Pacific packed
the California courts and that this was the reason why the people
demanded popular recall and voted for it by over 3 to 1.
While I have not advocated popular recall for executive, legislative,
or judicial offices where the people already have abundant means of
protection by electing judges for a fixed tenure of office or by legisla­
tive recall, it is nevertheless my opinion that the people are more
reliable than the legislature. It is more difficult to move the people




8

ADDRESS B Y SENATOR O W E N .

to any hasty or inconsiderate action. It is not difficult to move the
legislature by caucus action, by logrolling, by lobbying, or by mis­
representation and by combining selfish interests, because the legisla­
tors are few in number, easily gotten together, and easily subjected
to unfair influences. It is much more difficult to move the people
than it is the legislature. The legislature may be stirred to some
sudden, impetuous action by an eloquent speech, brilliant but spe­
cious. It may at times be tumultuous and have a riot, as at the
recent close of the Pennsylvania Legislature. But when the people
of a State, involving two or three hundred thousand people, go into
the quiet and seclusion of the voting booth, face to face with their
own several consciences, and for the general welfare cast their ballots
they are free from passion, excitement, or undue influence. The
people under these safeguards are more reliable than their representa­
tives in caucus, convention, or legislature.
I very well understand that those who oppose putting power in the
hands of the people do so on the theory that the people are very
“ excitable,” “ tumultuous,” “ turbulent,” “ unrestrained,” “ impul­
sive,” and a variety of other pleasing adjectives intended to portray
the people as an irresponsible mob.
This has been the Tory argument from the beginning of time. It
has no merit. It has no substantial truth.
L IB E L O N T1IE PEOPLE.

The suggestion, for example, that the people would drag a judge
from the bench by popular recall because of his upright conduct m
extending the constitutional guaranties to some unpopular person is
contrary to common sense and is a libel on the long-suffering common
people.
The theory that the Constitution was framed by the people to pre­
vent the brutality and tyranny of the majority over the minority is
another fiction. The fact is, the skillful advocates of the minority
have usually contrived by craft and underhanded means to paralyze
the will of the majority by jokers put into various constitutions,
especially the Federal Constitution, as I set forth in some detail in
my reply to the Senator from Utah during the last session of Con­
gress. The most conservative, sane force in this country is the rule
of the honest majority. The rule of the majority leads to peace, to
justice, to righteousness. The rule of the minority has nearly always
been in the interest of the few against the interest of the many, and
where it went too far the rule of the few has led to instability of
government, of property, and to revolution.
It is but natural that those who are the advocates of privilege
should adopt the Hamilton argument in favor of the rule of the few
and point out the “ dangers,” the “ brutality,” and the “ tyranny” of
the rule of the majority.
I believe in the rule of the people, in giving them direct power,
knowing that the American people are “ safe and sane,” that they are
a religious, industrious, intelligent, and benevolent people, who will
never deal unjustly with a judge or with any other public servant
who is faithful to their interests and who merits their approval.




O