Hail to the Chief

I read, with some interest, the PoliticsNJ story yesterday about the pending appointment of Chief Justice Andrews. Being an earnest fellow – and it not yet being April 1 – I took the story seriously and penned a commentary, less about Andrews than about our awful Supreme Court. Learning the truth, I figured, post it anyway; then, maybe, post it with a disclaimer. Finally, I decided, delete the whole thing.

But I spent too much time on a perfectly good rant to let it go completely to waste.

The premise – that a Legislator might be appointed to the Supreme Court – interests me. The last Legislator to serve as a Supreme Court Justice was Robert Wilentz and, THAT precedent bodes ill for the prospect that a Legislator would act like a judge rather an a politician once he trades in his legislative frock coat for a robe.

The New Jersey Supreme Court enjoys a well-deserved reputation for being almost as nutty as the Florida Supreme Court. (Although Massachusetts and Nevada offer strong challenges). Our "high" Court often acts that way, boasting an almost unbroken record of arrogance. It simply ignores statutes it finds inconvenient and blithely rewrites the state Constitution to suit the policy preferences of the Justices.

The primary element of a successful satire rests in getting the story just right enough to pass muster. Hence, the manufactured quotation in the story – that the proposed appointments "... would not push the court away from its traditional ideology" struck a responsive chord, as being entirely consistent with the rationale offered by the Left for choosing judges in the first instance. Results. They’re not particularly fussy about how one arrives at the "correct" result, provided that the policy adopted satisfies whatever "progressives" deem desirable.

That’s poison. Courts should not HAVE "ideologies". Indeed, potential justices should be explicitly vetted to ensure that they will NOT bring an "ideology" to the Court. If nothing else, having denied under oath any desire to judicially advance a political agenda, such promise might tend to shame a nominee into behaving, at least until he gets tenure.

All too often, our Supreme Court does what it bloody well pleases, without regard to the text or history of either the Constitution or statutes. Consider such outrages as Mount Laurel, Abbott v. Burke, the Lautenberg/Torricelli decision, the redistricting decision, or the various borrowing decisions. In Mount Laurel, the Court construed the constitution as requiring massive numbers of suburban condos (aka "sprawl"). In Abbott, it asserted the right to tell the Legislature how much to tax and spend. In the redistricting case, it proved itself to be not only illiterate – incapable of reading the Constitution – but innumerate as well – incapable of understanding, as the Appellate Division succinctly stated, that 1 + 1 = 2. The borrowing decisions – permitting contract debt and giving McGreevey a mulligan ("we'll let you violate the constitution just this once") was astonishing. (Perhaps, at some point, the Court will explain what other constitutional provisions can be violated, just this once, with impunity.)

And it’s a pretty fair bet that the Court is about to invent a right for gays to marry, probably written by Poritz as either her final legislative action – figuratively flipping the bird to the people on her way out – or, perhaps, merely as the crown jewel in a career almost unprecedented in hubris, the final gateway on the road to richly deserved obscurity.

Mind, this is NOT because the result at which she arrived in any particular case (necessarily) constitutes bad policy. That is, the Court is not wrong because it imposes an objectionable ideology, but because it imposes ANY ideology. Perhaps building thousands of suburban condos makes good sense. Maybe, permitting political Party Bosses to replace their Party’s voters’ nominee – a clear loser – on the ballot scant weeks before an election, is desirable. Maybe urban schools should spend twice as much as their suburban counterparts. Maybe drawing facially unconstitutional districts which favor Democrats makes good sense. Fantastically costly pre-school might actually benefit children and save money in the long run. And, perhaps, gays should be permitted to marry.

But absolutely no doubt exists that NONE of these decisions is mandated by either the Constitution or statute.

Our last two Chiefs raised judicial arrogance to an art form, with Poritz at least equaling or surpassing her predecessor’s legendary conceit. In a recent case – which, somewhat surprisingly, the Court majority got right – The Chief wandered off, in dissent, arguing, in essence, that nothing as trivial as the text of the statute she was allegedly construing should stand in the way of arriving at the "correct" result. The mere fact that the Legislature has not yet gotten around to addressing a particular subject, she asserted, should not prevent a Court from anticipating what the Legislature might do.

That's not applying the law; that's making it up as you go along.

But consider the nomination of a man like Andrews. He seems a pretty standard issue liberal. He’s 100% pro-abortion NARAL seal of approval;100% anti-choice (when it comes to schools, that is), boasting a 100% NEA record. He supported anti-free speech political restrictions and has opposed just about every effort to rein in lawsuits. He’s ranked wrong 3/4th of the time by taxpayer groups. In short, a fairly typical Big Government, High Taxing, Big Spending liberal. Or, in other words, just about consistently wrong on everything.

None of which has ANYTHING do to with how he’d act as a judge, PROVIDED that he agrees that a Judge must check his ideology at the courthouse door.

Chief Justice Wilentz – perhaps frustrated that the Legislature failed to enact his world view during his short tenure in the Assembly – treated the Court as his personal Legislature, a more malleable venue for imposing his quirky philosophy upon a reluctant populace. Poritz continued this embarrassing tradition.

The question for the Senate, then, is whether a nominee understands the fundamental difference between the role of a Legislator and the role of a Judge. Simply put, a black robe is not a license to impose one’s views on abortion, education, social policy, etc., upon the people. If one wants to effect policy, one should run for office.

As the Democrats in Trenton endorse liberal policies – often policies they lack the fortitude to openly support or legislatively enact – they would happily endorse an effort to judicially impose them, under the guise of constitutional mandate. They cannot be trusted to object strongly if a Court does so, nor to ask probing questions designed to explore a nominee’s judicial philosophy.

Possibly, a legislator, with vast legislative experience, will appreciate the fundamental difference between the Legislature, which makes policy, and the Judiciary, which must not. Maybe, such a nominee would actually READ the Constitution, and act according to the intentions of the Framers – and the people – rather than writing his own policy predilections into the text. Perhaps he would interpret statutes to carry through the Legislature’s intentions, and not merely as empty vessels into which he can pour his own wishes and desires for just society.

If not – if such Nominee carries on the legacy of his immediate predecessors – perhaps the worst history could do would be to forever link his name with those of Wilentz and Poritz, names which make any true student of the judicial function, cringe with shame.

Kudos, again, to Steve Kornacki, for an effective satire, which provided me with several happy hours of Court bashing.