Justice has ever been appointed from among the associate
justices, although a nomination was offered to and declined by
Mr. Justice Cushing in 1796. In the State courts the general
practice is to the contrary, and it is common to fill a vacancy
by appointing one of the associate justices.

Popular election and life tenure cannot well go together. The
chance of an irremediable mistake is too great. Judicial
nominations are often the mere incident of the prevalence in a
party convention of one faction of the delegates, whose main
object is to control the nominations for other positions.
American experience seems to indicate life tenure and executive
nomination, with some suitable provision for securing retirement
at a certain age, as likely to secure the best judges of the
higher courts. This has worked well for the United States, and
no State courts have stood higher in the general opinion of the
bar than those thus organized. For the lower courts there is
less necessity and less chance for getting men of the first rank
in attainments and character. Shorter terms of office can
therefore reasonably be prescribed, and the objections to popular
election are correspondingly less. Even as to them, however, the
plan of executive nomination is safer than that of party
nomination. A man acts carefully when he is the only one whom
the public can hold responsible for what is done.

It is customary to provide that vacancies in judicial offices can
be temporarily filled by the Executive until there is an
opportunity for a new appointment or election by the proper
authority.