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In the mid-19th century a change occurred that Vanderbilt ascribes to the Jacksonian revolution, with its premise that all men are not only created equal but remain equal throughout life. While Andrew Jackson, once a judge himself, conceded that judges needed special qualifications, his followers took a more liberal view: jurors, lawyers and judges, all being men, all were considered equal. As a result of this thesis, the trial judge in Maryland and Indiana to this day must instruct the jurors in criminal cases that they are judges not only of the facts but of the law. An outgrowth of the equalitarian theory was a quantum jump in the number of men considered qualified for the bench, and pressures built up to rotate judicial offices. The result: popular election of judges for short terms.
The full effect of the Jacksonian idea was felt in 1846, when New York State switched to an elective judiciary—and paved the way for the reign of Boss Tweed. Other states followed suit, and as Judge Vanderbilt says, the "judges campaigned for judicial office in the hustings with the other candidates of the political parties from sheriff to hog reeve." Today all the judges of 36 states are elected political officers.
A knowledge of politics is by no means a disqualification for the bench.* Said Justice Henry T. Lummus of the Massachusetts Supreme Court: "There is no certain harm in turning a politician into a judge. He may be or become a good judge. The curse of the elective system is the converse: that it turns almost every judge into a politician." The elected judge, if he wants to be reelected, must make all the commitments of a politician. New York, a pioneer among the states for elective judiciaries, will not soon forget the tapped telephone conversation between Thomas Aurelio, candidate for Supreme Court justice in 1943, and Gangster Frank Costello. Gushed Aurelio: "I want to assure you of my loyalty for all you have done. It's undying." Aurelio was elected and is still serving. Politics has impaired the dignity of the courts in many ways short of association between judges and gangsters. In 1948 George Maxey, then chief justice of the Pennsylvania Supreme Court, ran for delegate to the Republican National Convention, in defiance of the Bar Association's canons of judicial ethics. When a political opponent, Will Leach, criticized Maxey, the chief justice publicly replied: "I refuse to enter into a personal controversy with him because no self-respecting man engages in a physical contest with a skunk or a mental contest with a moron ... If the share of the milk of human decency which the Creator allotted to Leach was churned, it would yield nothing but Limburger cheese."