Hail to the (New) Chief

The presumptive appointment of Stuart Rabner as Chief Justice of the New Jersey Supreme Court provoked a Ledger Editorial, together with a news story, and coincided with a Op-Ed piece by erstwhile Justice Peter Veniero, all meriting discussion.

The editorial commences with a paean to our esteemed Supreme Court as "... one of the nation’s best and most progressive, partly as a result of its landmark decisions on important issues ranging from affordable housing to improving impoverished schools." In this one sentence, the Ledger sums up just about everything which is wrong with the Court.

Far from being hailed as one of the nation’s best Courts, most commentators who care about the appropriate role of the judiciary condemn it as among the worst -- despite stiff competition from Florida and Nevada -- a perennial embarrassment. The Ledger happens to agree with the results at which the Court arrived and, therefore, despite the fact that neither Mount Laurel nor Abbott – the decisions to which the editorial refers – have the slightest basis in the actual New Jersey Constitution, they applaud the Court for its willingness to impose its view of proper policy upon an unwilling populace.

As a matter of policy, the "progressive" decisions at which the Court arrived have been essentially unmitigated disasters, as almost all "progressive" policies are. In Mount Laurel, the Court proclaimed that we should let 10,000 condo complexes bloom, with the result that suburban sprawl exploded. Abbott produced a system of constitutionally untouchable, hugely expensive public schools which fail to educate children at massive public expense, as opposed to their predecessors, which failed to educate children at merely great public expense. These decisions, together, make property tax relief essentially impossible. The related judicially ukase -- to expend billions constructing urban public schools – produced entirely predictable fraud, indebted the state up the wazu (without the constitutionally requisite public referendum) and contributed to making NJ the worst tax hell in the US, with no relief in sight.

Indeed, the very assertion, that a "good" Court can be "progressive" stands as the very definition of a judicial oxymoron. Judges approaching cases with a view toward imposing "progressive" mandates are, by definition, violating their oaths of office. Courts exist to interpret the language of statutes or constitutional provisions, not to reinvent them in a "progressive" image. When a Court reads into a 60 year old document a "right" to gay "civil unions" or marriage, it is acting not as a judicial tribunal, but as a Ruling Council, imposing mandates, not interpreting the Constitution. Any putative judge who asserts that the judicial power includes the right to ignore the intentions of the people who framed and adopted the document, in favor of "progressive" reinterpretation of language, should be denied appointment or, if in office, expeditiously removed.

The difference between "conservatives" and "progressives", judicially, lies in the fact that progressives care only about results. If – say – abortion on demand is "correct" policy, whether one imposes that policy legislatively or judicially matters absolutely not all. Progressive judge Roe not by its intellectual or jurisprudential merits – of which, none exist – but upon the desirability of the outcome. Good result = good decision. End of question.

"Conservatives", contrariwise, actually care about process. An example: assume that instead of a "progressive" Court, NJ enjoyed an activist, "conservative" Court when Abbott came before it. Noting the failure of the urban public schools to deliver a decent education, said "conservative" Court Ordered the Legislature to fund equal vouchers for every student in the state.

The results of such an Order would be wonderful. Parents would instantly enjoy broad educational choice; numerous new schools would open, of every possible stripe, providing a huge smorgasbord of educational choices. Property taxes would drop by at least half throughout the state. Costs would decline precipitously. The NJEA would become an historical anachronism, its political power gone. Instead of fleeing the state, people would clamor to move in.

But the Left – which cares about government, not kids – would produce an instantaneous litter of full grown calves, for, to them, parental choice ends at birth. And, in this particular case, they’d be right. Not on the merits, of course; any rationale policymaker would choose vouchers over the present system in a New York minute. But no Court, anywhere, possesses the power to impose even such a magnificent policy upon the Legislature.

Any prospective judge who can’t distinguish between his own policy predilections and constitutional writ needs to seek a new line of work. Take, for instance, Lawrence v. Texas, the case which concluded that state criminal sanctions against homosexual behavior run afoul of the Constitution. A wonderful result, in the opinion of this libertarian; the State should not possess the power to tell adults how to act, sexually, behind closed doors. But a decision, however desirable the result, completely and totally without textual support in the Constitution. And, hence, totally illegitimate, however pleasing the result.

For the Left, a case must always be decided the "right" way, in the sense of imposing the Left’s view of propriety. Which is why leftists, generally, should never be permitted to serve as judges. They simply can’t fathom that there might be a difference between "doing that which (they believe) to be right" and doing that which the Constitution compels.

The Ledger news story about Rabner mentions that, previously, he sought a Superior Court judgship in Essex County, but his political mentor – no less a personage than Senate President Richard Codey – couldn’t pull it off. Concerns about "ethnic diversity ... worked against a white Jewish man..."

Now, consider: here is a man the Ledger praises as an "Impressive Pick" to serve as the Chief Justice of the New Jersey Supreme Court, who found himself disqualified from a Superior Court judgship because he was the wrong sex, race, and religion.

If ever a story pointed up the absolute poison of the "diversity" industry, this should be it. Assertedly exemplary candidates merit no consideration, because qualifications come in a poor second to accidents of birth. Turn "he" into a "she", or transform this "white" into a "black", and teh nomination follows as a matter of course. Instead, presumably lesser qualified people received those appointments on account of their race or sex. (If they were not lesser qualified, why are they not the choice for Chief instead of Rabner?)

Justice Verniero's column mostly deals with perceived threats against judges – either physical or to their "independence" – but it merits a few comments.

First, he notes that courts only decide the cases brought before them. True, that, but given that litigants present essentially every societal issue to judges, that constitutes small comfort to those who favor rule by elected officials, not appointed judges.

Second, he notes that when Judges make mistakes, they're subject to correction. Again, true in theory. But, in practice, such is another matter.

"Conservative" objections to judicial decisions arise less from the possibility that judges make mistakes, but from the well-founded, amply documented contention that judges don’t understand their jobs. It is certainly possible to get a decision wrong inadvertently; it is quite another to deliberately ignore the text and history of a statute or of the constitution to arrive at the "right" result. "Conservatives" don’t mind occasional, correctable "mistakes", but they object strongly – and correctly so – to repeated, deliberate abuses of power.

In NJ, examples of such judicial misbehavior abound, but take just two: the Court read the time limit to replace candidates out of the law in the Torricelli case and judicial removal of the Constitutional provision against dividing municipalities into more than two legislative districts from the document. In neither case was there the slightest doubt about the language of the relevant provision, but the Court disliked the results fealty to the language would produce, so it ignored the law. What’s the point of writing statutes, or drafting constitutions, if the Court simply does what if bloody well pleases?

Veniero errs when he avers that the vitriol quite properly directed at the Courts for these absurd decisions "... undermines the legitimacy of the court system". Rather, the decisions themselves, coupled with the arrogance of judges who assert the right to impose their will rather than render their judgment, undermines popular faith in the impartiality of the Courts

Veniero seems to forget that every idiotic decision benefits someone – often, very powerful someones – who can prevent the political system from correcting inexcusable, but profitable decisions. The Court got the Torricelli decision wrong; everyone admits that. But the Dems, in control of the Legislature, were hardly in a hurry to rebuff the Court which had just delivered a Senate seat into their laps. They didn’t care about the law, they cared about power.

The simple solution to Judges’ objections to being treated like politicians? Stop acting like politicians. Leave policy-making to the Legislature. A judge who believes we should spend more on urban schools, or build more low income house, is privileged to vote for legislative candidates who share that perspective. But she is not empowered to torture the Constitution into compelling those particular results, simply because the Educational Law Center or the NAACP brought a suit asking for that relief.

Perhaps, then, the best that can be said for the Rabner appointment is that he can’t possibly be any worse than Wilentz or Poritz. Hardly high praise, but, in New Jersey, searching for some ray of sunshine in these dark times is about the best that any lover of freedom – and respecter of the Rule of Law – can manage.