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Delegate Bennett, do you still desire to
offer your amendment BF?
DELEGATE BENNETT: Yes, Mr.
Chairman, if it is in order.
THE CHAIRMAN: The Page will dis-
tribute amendment BF. This will be Amend-
ment No, 40.
DELEGATE BENNETT: Mr. Chair-
man.
THE CHAIRMAN: Delegate Bennett.
DELEGATE BENNETT: I think I can
explain it.
THE CHAIRMAN: Just a second. I
want to make sure it is distributed. The
Clerk will read the amendment.
READING CLERK: Amendment No. 40
to Committee Recommendation JB-1 by
Delegate Bennett: On page 6 section 5.21,
Term of Office of Judge, strike out the
sentence in lines 43 through 50, inclusive
beginning with the word "The" in line 43,
through the word "thereof." in line 50.
THE CHAIRMAN: The amendment is
proposed by Delegate Bennett. Is there a
second?
(Whereupon, the amendment was duly
seconded.)
The amendment having been seconded,
the Chair recognizes Delegate Bennett to
speak to the amendment.
DELEGATE BENNETT: Mr. Chairman
and ladies and gentlemen of the Conven-
tion, the purpose of my amendment is to
strike out the proviso that the Court of
Appeals shall make it mandatory to pro-
vide for a secret ballot as to whether a
judg^e should be continued in office. My
friends here have been enacting some pretty
heavy stuff for lawyers. Lawyers are oc-
cupying or no doubt will occupy the domi-
nant role in the nominating commissions
and selections of lawyers. We have author-
ized the court by rule to determine the need
for specialized courts. We have given a
great deal of power to the courts in the
administration of the court system, and we
are feeding on pretty strong meat, it seems
to me. I think that good sense and modesty,
a sense of fitness of things would make
the lawyers a little bit reluctant to set
themselves up as judges exclusively as to
whether a particular judge should be con-
tinued in office. That is bad enough, and
it is lacking in modesty, as I say, but what
it does in effect is hold a bludgeon over the
court of the judge that may come up for
continuance in office, and the judge, being
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a human being and wanting to continue on,
is going to encourage favor with the bar,
and he is, I am afraid, going to destroy
some of his own usefulness, because he will
try to win the approval of the lawyers.
Moreover, and most importantly, we do
not need to have this done by rule. Law-
yers, any time they want to do so could
hold their poll. They could make their
views known and no doubt would do so.
Is this a matter of constitutional dimen-
sion, I ask you? Is this not perhaps ex-
hortatory in nature. I think that it would
be far more desirable to leave this matter to
the sound discretion of the members of the
bar, and I hope, therefore, that you will
eliminate this provision and leave the judge
in a degree of independence that is so
necessary for success in his job.
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Mr. Chairman,
ladies and gentlemen of the Committee:
This provision in our recommendation for
polling lawyers and that the poll be pub-
lished received careful and full considera-
tion in our Committee. Delegate Proposal
5 as referred to our Committee in dealing
with this matter made it permissive. The
word was "may" and not "shall".
Initially the vote in our Committee on
whether the provisions for the poll should
be contained in the language of the recom-
mendation of the study commission was
very close. The closeness of the vote, how-
ever, as I recollect the discussion, was that
if such a poll were permissive and not man-
datory, the danger was greater; that it was
great that it might in rare instances be
used in an effort to dominate the thinking
or guidance of the voters who would have
an opportunity to vote Yea or Nay on the
continuance of a judge in office.
After the word "may" was stricken and
the word "shall" was added, the considera-
tion by our Committee was by rather sub-
stantial vote to include this provision in
the recommendation to this Convention.
We feel that in some areas here, we are
arguing with respect to lawyers that they
are dominated by judges. That was the
thrust of the argument yesterday in elimi-
nating members of the judiciary from the
nominating commissions.
If I understand the thrust of the argu-
ment of Delegate Bennett in support of
this proposal, it is that the judges will not
only make no effort to dominate the law-
yers, but will become subservient to their
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