Source: The New York Daily Call, November 1st, 1910. Vol. 3, No. 305.
Public Domain: This work is free of any copyright restrictions.
Transcription and Markup: Bill Wright for marxists.org, July 2023.
Sir:
Permit me, one of the nominees of the Socialist party for the office of Judge of the Court of Appeals of this state, to address to you, the acknowledged leader of the Republican party in this state, a few questions on a subject that you must admit is of the greatest importance to the electorate of this state in the present campaign. I refer to the subject of the judiciary.
I need not point out to you the tremendous influence of our judiciary on the government, and therefore upon the social conditions of this country. As a careful student of our history you know that all our social and economic struggles have assumed the form of a struggle for constitutional interpretation to be ultimately decided by the judges, from whose decision there is no appeal except to the arbitrament of the sword. You can therefore appraise at its true worth the hollow pretense of the so-called “reformers” who would “take the judiciary out of politics.” You know that there is not, in this country, an office in its nature more essentially “political” than that of a judge, and the higher the judicial office the more political it is, for it is our judges who ultimately pass upon the “politics” of this nation. The office of judge of the Court of Appeals of the State of New York, the highest judicial office in this state, is therefore in many aspects the most powerful “political” office in the state.
I also need hardly remind you of the fact that the greatest obstacle to the orderly and peaceful progress of this nation today is the presence in our highest judicial offices, both state and federal, of judges belonging to an older school of politics, the politics of rampant individualism, who, under the pretense of preserving an old and outworn ideal of “liberty,” set their face against the new policies of social and labor legislation suitable to modern conditions of society, and thereby work untold misery and perpetuate injustice and iniquity. I need not remind you of this, for it has never been told to the people of the United States so plainly, except by members of the Socialist party, as it was done by you in your recent speeches in the West. In your speech to the members of the Colorado legislature, at Denver, Colo., on August 29, you said:
“The courts occupy a position of importance in our government such as they occupy in no other government, because, instead of dealing only with the rights of one man face to face with his fellow men, as is the case with other governments, they here pass upon the fundamental governmental rights of the people as exercised through their legislative and executive offices. Unfortunately, the courts, instead of leading in the recognition of the new conditions, have lagged behind, and, as each case has presented itself, have tended by a series of negative decisions to create a sphere in which neither nation nor state has effectual control, and where the grand businesses that can call to their aid the ability of the greatest corporation lawyers escape all control whatsoever. I believe that in every part of our complicated social fabric there must be either national or state control, and that it is ruinous to permit governmental action, and especially judicial action, which prevents the exercise of such control.”
Then after citing the Knight Sugar case and the New York Bakery case, you go on to say:
“But the Supreme Court of the United States possessed, and unfortunately exercised, the negative power of not permitting the abuse to be remedied. By a five-to-four vote they declared the action of the state of New York unconstitutional, because, forsooth, men must not be deprived of their liberty to work under unhealthy conditions? All who are acquainted with the effort to remedy industrial abuses know the type of mind which may be perfectly honest, but is absolutely fossilized, which declines to allow us to work for the betterment of conditions among the wage-earners on the ground that we must not interfere with the ‘liberty’ of a girl to work under conditions which jeopardize life and limb, or the ‘liberty’ of a man to work under conditions which ruin his health after a limited number of years.”
In view of these statements of yours it is pertinent to ask you, and to demand of you a public answer to the following questions:
How came you, as to the guiding spirit of the Saratoga convention, to enter into an arrangement with the Democratic leaders whereby the two vacancies on the Court of Appeals bench were to be divided between your party and the Democratic party, each to nominate one candidate and both parties to support the two candidates so selected?
You knew that the Democratic party was a party of reaction; you often said so. You knew that the Democratic party was opposed to those policies of social and labor legislation which you call “progressive,” and which, you would have us believe, you advocate earnestly and sincerely. You knew that the Democratic party was committed to that so-called “liberty” which you yourself so rightfully held up to scorn as the instrument of social stagnation, and of injustice and iniquity to the working class. You knew that the ultimate decision of these questions so vital to the people, particularly to the working people of this state, lay with the judges of our Court of Appeals, whose decision, if against the rights of the people, was final. And you knew, furthermore, from your experience with the United States Supreme Court, that the Democratic judges are, as they should be expected to be, the most fossilized that ever sat on the bench.
How could you, in the face of all this, wilfully leave it to the Democrats to name one of the judges of the Court of Appeals, thus putting it into their power to nominate a judge, as they were bound to do, of a fossilized mind, and committed to a reactionary policy, who, if he were honest, was bound to upset all your work in this state, by declaring your policies “unconstitutional,” if you ever succeeded in enacting them into laws?
How could you, as part of your bargain with the Democrats to nominate one of the judges of the Court of Appeals, nominate for that office the Hon. Irving G. Vann, who has proven himself to be one of the very “fossilized” judges whom you so unmercifully scourged?
You must have known Judge Vann’s record. You must have known that only three years ago, in the case of People vs. Williams, 189 N. Y., 131, he used his “honest” but absolutely “fossilized mind” and his vote as judge of the Court of Appeals to declare unconstitutional the law prohibiting the labor of women between the hours of 9 p.m. and 6 a.m. That decision was rendered by him in the name of that iniquitous “liberty” which you so justly held up to scorn. By that decision he declared it to be against the principles of “liberty” to protect our women against the exactions of night work after 9 o’clock at night; work that is always ruinous to their health, and to their family life, and nearly always to their good morals.
In that decision Judge Vann, incidentally, concurred in the approval of that very bakery law decision which you cited as an example of the havoc and wreckage wrought by judges of “honest and fossilized mind” in our social life; although he himself voted to sustain the law when it was originally before the New York Court of Appeals. But he did more by that decision. He succeeded in eclipsing the fame of your celebrated “five” as a defender of that “liverty” which you so ably laughed to scorn. But even these “five” held in the case of Muller vs. Oregon, 208 U. S. 412, that women form an exception, because of their more tender physique and the burdens of motherhood, to the strict requirements of “liberty,” and that “liberty,” even as they understand it, will not disappear from this land if its women will not be enslaved unmercifully. Mr. Justice Vann, on the contrary, holds that this goddess “liberty” is so exacting that she requires the sacrifice of women as well as men, that she brooks no distinction of sex, and that in order to satisfy her we must leave our women to the tender mercies of her votaries who are ready to work and wreck them in the dead of night, as well as by the light of day.
How came you, then, to nominate him?
Respectfully yours,
L. B. Boudin.
Brooklyn, N. Y., Oct. 27, 1910.
Last updated on 4 August 2023