There is the
temptation to feel that he can never be wrong; that a question may be
reargued, but that he is not going to change his opinion.
The possibility is that the judge is a mild sort of bully. But it is
not always safe to go on the assumption that being a bully he is also
a coward. He may be, but on a trial the odds are too much in his
favor. If the lawyer wants to fight the judge, he has a great deal at
stake; he may awaken so strong a prejudice that the judge knowing the
rules of the game better than he does, may beat him on a technicality.
On the other hand it is a mistake for the lawyer to be subservient and
too cringing. Being a bully, the judge is apt to take advantage of his
position. The best policy is to appeal to his human instincts as a
man. He may be decent in spite of critics of the courts to the
contrary notwithstanding. If he is kindly treated he will respond.
In New York judges were appointed until about 1846, when there was a
popular upheaval and the constitution was changed, and they have ever
since been elective, with the exception of some of the minor courts.
The advantages of the two methods is an open question. The arguments
in favor of appointment are that it makes for an independent judiciary
and that it secures better men for the bench, whereas the other does
not, because the highest class lawyer will not go through the turmoil
and supposed degradation of a political campaign.
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