McGILL LAW JOURNAL
Volume 15
Montreal
1969
Number]
Improving the Administration of Justice
Mr. Justice Tom C. Clark *
It was the words of Roscoe Pound, later Dean of the Harvard
Law School, that became “the spark that kindled the white flame
of progress” in court reform. They were spoken at a meeting of the
American Bar Association in 1906 at St. Paul, Minnesota, in an
address entitled “The Causes of Popular Dissatisfaction with the
Administration of Justice”. It was here that the Dean said:
The public seldom realizes how much it is interested in maintaining the
highest scientific standard in the administration of justice. There is no
more certain protection against corruption, prejudice, class feeling or in-
competence. Publicity will avail something. But the daily criticism of trained
minds, the knowledge that nothing which does not conform to the principles
and received doctrines of scientific jurisprudence will escape notice, does
more than any other agency for the everyday purity and efficiency of our
courts.
Within six years this spark had grown to flame through the
organization of the American Judicature Society in 1912. It was
no other than Dean John Wigmore -and Roscoe Pound who, with
Herbert Harley, established it as a nationwide force in the promo-
* An address given by Mr. Justice Tom C. Clark to the Canadian Judicature
Society, September 4, 1968. Justice Clark was Attorney General of the United
States from 1945 to 1949 and Associate Justice of the Supreme Court of the
United States from 1949 to 1,967, when he resigned upon the occasion of the
appointment of his son, Ramsey Clark, as Attorney General. Justice Clark on
designation of the Chief Justice sits in all federal courts, save ‘the Supreme Court.
He is Director of the Federal Judicial Center -and was instrumental in setting
up and operating the National College for State Trial Judges. He is Chairman
of the Board of the American Judicature Society.
McGILL LAW JOURNAL
[Vol. 15
tion of the effective administration of justice. The principles which
Pound declared were necessary if the courts and the bar were to
keep the respect of the people were four, namely, take the judges
out of politics; bring business techniques to court administration;
develop modern rules of procedure; and, finally, create a unified
court system. The Society undertook to promote these objectives.
to
organize the Society? The American Bar Association was devoting
its efforts to “bread and butter” subjects rather than judicial re-
form. Indeed, there was no association devoting its energy to the
improvement of the administration of justice exclusively, particu-
larly in the adjective field.
And why was it necessary for Pound and his colleagues
Sixty-two years have passed since that day in St. Paul. The
Society has grown to over 30,000 members in all of the 50 States,
the insular possessions and over thirty foreign countries. And today
there has been created here on Canadian soil the Canadian Judica-
ture Society, an outgrowth of the Western Judicature Society of
Edmonton, Alberta. As Chairman of the Board of the American
Judicature Society, I am proud of this development and of the part
that our Society had in its inspiration. We wish for you equal ac-
complishment in your great country.
And what is this accomplishment of which I speak? It is that
the Judicature Society stands pre-eminent in the crusade for the
modernization of the courts in the United States. Just as a hunter’s
skill is measured by the number of skins hanging on his shack,
Judicature stands the test of numbers in its accomplishment. State
after State from California to New York – Michigan to Texas –
it
has, through its leadership, brought about significant improvement
in the reorganization of the judicial structure, the improvement of
trial rules and techniques and the selection and tenure of judges.
No single bar association can claim more credit in this field. With
due credit to the American Bar Association in the substantive law
field, and its continued good work in cooperation with other bars
in judicial modernization – which has only my highest and warmest
admiration –
the Judicature Society’s law and layman program
has carried the ball in remodeling the judicial structure and in the
selection and tenure of judges, and their discipline and removal. In
complete cooperation with the American Bar and other law groups,
state after state have adopted improvements in these areas.
Roscoe Pound was a botanist gone legal. He understood men as
well as court systems and with typical wisdom he thought “men
count more than machinery”. As he pointed out, again and again,
even with the clearest of rules, the most modern procedures and
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IMPROVING THE ADMINISTRATION OF JUSTICE
3
the most efficient techniques, the key factor in the administration
of justice is the judge. As Bob Leflar has so well said: “The quality
of our judges is the quality of our justice”. And Jake Ehrlich put
it in the succinct language of the trial lawyer: “There is no guar-
antee of justice except the personality of the judge”. The reason
for this is simple, i.e., the rules are not automatic or self-enforcing.
Though we pride ourselves in being a government of law, we all
know that men make the decisions.
The English High Courts of Justice have for centuries been the
center of English justice. Those of us who are dedicated to the law
cherish the invaluable traditions and enlightened jurisprudence that
it has spawned. In 1882 the home of the Law Courts was moved to
its new building. In the dedicatory ceremony Queen Victoria con-
cluded her address with these words:
The independence and learning of the judges supported by the integrity
and ability of the other members of the profession of law are the chief
security for the rights of the Crown and the liberties of the people.
to the
These words are most significant. They give emphasis
independence, learning and integrity of the judges and the Bar
which are the characteristics upon which effective justice rests.
This means that judges and lawyers must act on the facts and the
law regardless of fear or favour from outside influences, that they
be disciplined by a breadth of knowledge of legal principles and that
their honesty and integrity be beyond reproach. Moreover, these
attributes should not only be present but their appearance must be
evident.
We who have been at the Courts, as well as in them, know that
a judge’s decisions are the product of the type of man he is and
his philosophy of the law. For example, in a state multiple judge
court where the average conviction rate on criminal charges was
found to be 94 percent, one judge in the group only convicted 20
percent. And in the federal system, sentences after conviction of
the same offense show a wide disparity.
What, therefore, are the qualities that make up a good judge?
First, we might say what he need not be. Certainly -a judge need not
be vicious or corrupt to be a threat to the office. Mediocrity can pol-
it is
lute as badly as criminality. Mediocrity is more pervasive –
present in every case tried by a mediocre judge. Corruption picks
and chooses cases, awaiting the most vulnerable one. The victims
of mediocrity are those who cannot appeal because of their penury.
The appearance of justice is as important as justice itself. The bun-
gling, incompetent, prejudiced, mediocre judge tarnishes the whole
picture of the judicial process. Moreover, he cannot in practice be
McGILL LAW JOURNAL
[Vol. 15
removed simply because of his mediocrity. On the other hand, the
corrupt or senile judge may be.
A recent survey of the judges attending the National College
for State Trial Judges found the six most important qualities of a
judge to be moral courage, decisiveness, integrity, patience, good
health and consideration for others. The six items the judges rated
of no importance were listed as past political activity, higher earnings
in the practice, civic activity, administrative ability, above average
scholarship and activity in professional associations. The co-ordi-
nated committees of six bar associations in New York City named
seven attributes: integrity, legal ability, above average legal experi-
ence, good health, industry, diligence and judicial temperament. And
the reply of a Florida journalist was, “that man was crucified 2000
years ago”. The New York Times headline opined editorially: “Reci-
pe for Judge: Pinch of all virtues, stirred in integrity”. As Professor
Maurice Rosenberg stated: “On the basic qualifications of a judge,
there is wide agreement… the way to measure them brings on the
bafflement”. He suggests that instead of a comparison on integrity,
courage, etc., the selection be oriented to reality. First, reject all
those who do not possess the homely virtues and concentrate on the
objective criteria that point up the best qualified. As the Professor
points out, “there is very little difference between one man and
another; but what little there is, is very important”. A first step
would be to develop a meaningful description of the judge’s duties;
then the actual performance standards of sitting judges; and finally
comparisons. However, a practical set of professional qualifications
can only be devised through experience. But without it, as the Pro-
fessor says, the solemn and important process of selection will re-
main but “a noble charade”.
A quick review of the judicial selection systems used throughout
the world might be helpful. The Lord Chancellor in actuality makes
the appointments in England. While he himself is a political officer,
his appointments throughout history have been non-political. This
long-time practice has, become a most effective sanction. It com-
mands and insures that only the best qualified judges be appointed.
In the French system, members of the legal profession are trained
for the bench. The Minister of Justice makes the appointments, but
he is restricted to a panel of three candidates proposed by a judi-
ciary commission. The French system is followed in all European
countries save Russia. In South America lists of names are pro-
posed by the Supreme Court and the ‘appointing power is limited
to this list. In Asia appointments are made on the suggestion of the
Chief Justice. Thailand is to the contrary. Japan, however, uses lists
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IMPROVING THE ADMINISTRATION OF JUSTICE
5
prepared by the Supreme Court. In Russia judges are subject to
political control of the party, even to removal.
In the United States most of the States follow the elective method.
A growing number are using the Commission Plan by which a non-
partisan statutory Commission nominates a panel of three judges
for each vacancy. The final choice is in the appointing power. The
Commission is composed of laymen and lawyers, equally divided
by vocation as well as politics. The Chairman is the Chief Justice
of the State Supreme Court. In the federal system the appointive
power is in the President with confirmation by the Senate. Political
pressure is often exerted, particularly by Senators. The initial selec-
tion is made by the Attorney-General, who submits his list to the
President. If the latter approves the nomination, it is sent to the
Senate where it must be confirmed by a majority vote. In the case
of United States District Judges, the Senators of the State of his
residence have in effect a veto on his appointment afforded by
“senatorial courtesy”. This custom, however, does not extend to
Appellate federal judges and Supreme Court Justices. The fact re-
mains that appointments from the party with which the President
is identified have been as high as 98.7 percent by Woodrow Wilson,
and as low as 82.2 percent by Taft. During the last sixteen years
federal appointments are cleared through a committee of the Ameri-
can Bar Association in a manner similar to your own procedure.
This has proven quite helpful but is a voluntary system and rests
in a delicate balance. Moreover, it does not permit any systematic
recruitment, although the Attorney General could, of course, receive
applicants or suggestions. The system is the reverse of the Com-
mission plan. There the Commission proposes and the executive dis-
poses by appointing one on the list it suggests.
Presently, the President not only proposes but also disposes. He
alone selects the nominee. The ABAR Committee is. relegated to
appraising the quality of the nominee. Its action is not binding in
the least. However, very few disapprovals by the Bar have come
to light. In fact, I recall only two out of hundreds handled in this
manner, which indicates the influence of the President rather than
the excellence of his nominee.
An effort at reform has been on foot in the United States for
years. A Bill is now pending in the Congress seeking to create a
Judicial Service Commission of seven members. Three come from
the Bar, two from the Judiciary [but must be in retired status]
and two may be laymen. Not more than four members can be from
the same political party. It is the duty of the Commission to make
recommendations to the President covering any judicial vacancy.
McGILL LAW JOURNAL
[Vol. 15
However, the President is not limited to its recommendations, but
failing to honor them he must state his reasons in the nomination
made.
I believe it my duty to speak up for change. Everyone agrees
that judges should be selected on merit. Politics should have no part
in their selection. As Thomas Jefferson said: “Judges should always
be men of learning… they should not be dependent upon any man
or body of men”. There can be no doubt but that judges should be
appointed rather than elected. This is not to say that there should
be a one man selection system. There should be some kind of check
and balance over the appointive power. Otherwise, inevitably the
appointees will be politically oriented. That has been our experience
in the United States for almost 200 years. Change is not only good
for the judiciary and the country, but it is most helpful to the
appointing power. Presently he has no alibi, no excuse for not
appointing an unqualified political crony who is putting on heavy
political pressure, or for choosing between two equally qualified
friends or supporters. However, through a Commission or other
nominating process he can escape without any political damage. In
fact, my experience is that for every appointment made the ap-
pointing power makes a dozen or more enemies. This hurts in
politics. In my country judicial appointments have been sometimes
used to take care of the faithful, the defeated, the friendly. Indeed
I have heard of promises made during a political campaign and later
honored by judicial appointment. Furthermore, I know of defeated
politicians in our country who went on the bench and others who
were election campaign managers. And even though these appoint-
ments may be good ones –
and many of them have proven to
be –
the appearance of the judiciary is damaged and degraded.
Like Caesar’s wife, the judiciary must not be subject to the conno-
tations accompanying such actions.
What is amazing is that people tolerate our present system.
Some people just do not realize it; others do not care; but when
they get in the toils of the law then they begin to rave. It seems
obvious that the government should provide some agency to pro-
tect the courts from this. The Judicial Commission is the answer.
No method of selection, however, can guarantee that all judges
will remain competent over their full term. It is, therefore, neces-
sary to have an adequate means of disciplining and, if necessary,
removing judges who violate their oath or become mentally or
physically incompetent. No one should be above the law. Several
states in the United States now have judicial qualification com-
missions or courts of the judiciary that carry out similar func-
No. 1]
IMPROVING THE ADMINISTRATION OF JUSTICE
7
tions. It is their duty to receive and investigate complaints against
judges. If the complaint is found justified it is certified to the State
Supreme Court after a hearing in camera by the commission. This
procedure insulates the judge from injury from spurious claims.
Still at the same time the public is protected.
In my country, we have become increasingly concerned also over
the training of judges. This concern has brought about the creation
of the National College for State Trial Judges. Planned and staffed
by able judges, experts in their field, the College makes available
to judges of general jurisdiction, within one to three years of their
appointment, a full month’s training in the intricacies of judging.
Its importance has been recognized by substantial grants of money
from the Kellogg and Fleishman Foundations. It has been received
with great enthusiasm by members of the bench, at whose instance
its facilities have been expanded from a two and one-half day
seminar to the full month’s instruction which is now possible.
It should not be forgotten that there are important judicial
officers other than judges. All that I have said in connection with
the appointment of judges applies to the appointment of magis-
trates. All that I have said with respect to discipline, removal and
training of judges applies to discipline, removal and training of
magistrates. Improved qualifications, security of tenure, removal
of magistrates from all possible suggestion of political influence,
are important steps in improving the administration of justice.
It is not my purpose to paint the failings of the judicial system
with a heavy brush. Nor do I intend to deride the courts, criticize
the judges nor tell anyone how to improve the judicial system. We
have good judges – many are great ones. And so do you. But I
ask you: “Is every appointment the best ?” Does the system lend
itself to the appearance of political preference and manipulation?
If so, it should be corrected. Even the appearance of justice must
be the best. If, through the system, some believe that politics is the
predominating factor in the selection of judges, that is bad. We in
the United States suffer from the same problem and are endeav-
oring to correct it. Indeed there is a mighty crusade in the United
States today to correct such “appearances”.
Many years ago Chief Justice Marshall said: “The greatest
scourge an angry Heaven ever inflicated upon.., a people was …
a dependent judiciary”. This means that no judge can be beholden
to either a political party or to a politician. The judge is the only
guarantee of justice. He must therefore be responsible only to God
and his conscience. His independence is the bulwark of public liberty
and the great security to private property. The very nature of his
McGILL LAW JOURNAL
[Vol. 15
service prevents his enjoyment of widespread public favor. It
is
not enough that we keep the doors of the courthouse open, the
floors clean, the jury box, counsel table and bench polished. With-
out patronage, without control of the purse nor of the sword, the
court’s effectiveness rests solely upon the public’s confidence in the
judge and the purity of the court’s procedures. If they have a politi-
cal or other sinister appearance the integrity of the entire system
is tarnished and undermined. When it starts from politics it ends
with politics in the minds of the multitude, particularly the dissatis-
fied. We must avoid these connotations. The appearance of the judge
and his staff must be above suspicion.
Every person can have a hand in this. Indeed, every person
should take a hand in it. Justice is everybody’s business and its
good appearance is everybody’s job. In the United States every one
of the 32,000 members of Judicature – which includes many lay-
men –
is taking a hand in this crusade. Through the good offices
of the Canadian Judicature Society you can do the same. This
means not only lawyers, but judges and laymen as well. The donning
of the robe does not absolve the judge either of his duties or his
responsibilities as a citizen.
The great satisfaction of my life has come from experiencing
the widespread improvement of our court system and my small
part in it. Whole judicial establishments have been reformed, others
materially changed and still others streamlined. Judges have been
transformed from caretakers of to crusaders for justice. For my
part in this crusade I am grateful. As Mr. Justice Holmes once said:
To have the chance –
of doing one’s share in the shaping
of justice, spreads over one the hush that one used to feel when one was
awaiting battle. We will reach the earthworks if we live, and if we fail
we will leave our spirit in those who follow and they will not turn back …
All is ready bugler –
and take it –
blow the charge!
