How Very Predictable

So, gays can’t "marry" -- necessarily -- but they’re entitled to all the same rights as a married couple.

Split the baby. Plaintiffs will be annoyed, because they wanted a societal affirmation that their relationships are no different than heterosexual unions, a determination the Court (quite properly) rejected. But those who take the constitution seriously will be likewise annoyed, because of the underlying rationale for the determination: "substantive" due process and "equal protection".

First, "process" and "substance" are, virtually by definition, mutually exclusive. "Substance" defines a particular policy, "process" the means by which we effect it. Use of the expression "substantive due process" represents nothing more than judge-speak for "arriving at the right policy result". Despite Justice Albin’s protestations to the contrary, inventing a brand new right, despite the utter want of any Constitutional authority for same, constitutes an intrusion into the Legislative arena.

And while "equal protection" analysis offers a certain facial appeal, it suffers from one crucial – indeed, fatal – defect: those words do not appear in the document. Hence, while this state boasts a lengthy, judicially invented "equal protection" jurisprudence, it’s simply impossible to square same with the express, unequivocal language of the document. The federal Equal Protection clause dates from 1868; had the Framers of our 1947 Constitution wished to insert a cognate provision, they easily could have done so. Importing it by judicial fiat constitutes a blatant extra-constitutional revision of the text, probably simply because the language is too judicially useful to forego.

Finally, leaving aside the fact that nothing in the Constitution even remotely suggests the necessity for treating gay couples the same as heterosexual couples, even on the relevant policy inquiry, the Court reverses the relevant inquiry. After reciting all manner of privileges and rights available to married couples and unavailable to any other group of people, it defines the question presented as follows:

"We therefore must determine whether there is a public need to deny committed same-sex partners the benefits and privileges available to heterosexual couples."

Wrong. As a matter of policy, the question presented is: what benefits do gay couples offer to the state sufficient to compel it to recognize their unions?

To which, the only legitimate answer is: nothing.

Put another way, it matters not at all, to the state, whether gay unions endure or collapse. It is upon them to justify an expansion of benefits to them, not up to the state of justify a denial.

Generally, the state need only demonstrate that its laws are rational; limiting marital rights to those couples which may presumptively produce biological children makes perfect sense. Extending rights to gay couples, the relationships of which are a matter of the utmost (public) unconcern, makes precisely no sense.

Put simply, if the Justices feel that there is something "distinctly unfair" with extending benefits to heterosexuals and not to gays, a simple solutions presents itself: run for office.

The Court asserts a mock deference to the Legislature, presuming its presumptive compliance with this ukase to be constitution, directly after a holding which blithely upsets centuries’ worth of precedent.

It’s time that the people of New Jersey gave the Justice of Supreme Court the spanking they deserve. They clearly fundamentally misunderstand the appropriate judicial role. They can’t read and, in the reapportionment and Torricelli cases, they demonstrated that they can’t count. It’s time to evict these men and women from office, and replace them with people who understand basic concepts like the separation of powers.

Assemblyman Merkt will be introducing articles of impeachment. The majority should give these proposals the quick hearing they deserve.

With Breath Abated ...

In about an hour or so, the Supremes will deliver their long awaited decision on gay marriage.

When this case first arose, I predicted that this Court – jealous of its title as the worst Court of last resort in the nation – will "discover" a fundamental right for gays to marry lurking in the provisions of a document adopted in 1947. After all, if the Massachusetts Supreme Court could find such a right in a document drafted in the 18th century, by men wearing powdered wigs, how much easier to is to discern such a "right" in a more contemporary document?

And considering that our Supreme Court invented a "right" to low and moderate income housing in every single municipality in the State, invented a "right" to massive state subsidy to urban school districts, invented a "right" to medicaid funding of abortion, invented a "right" for a minor to secure an abortion without telling her parents, inventing a "right" for gays to marriage seems entirely consistent with the past ukases.

Nonetheless, there is hope. No other Court has duplicated Massachusetts judicial cout d’etat, despite the fact that both ultra-liberal New York and California courts have passed on the subject.

The gay marriage issue demonstrates the fundamental distinction between "liberals" and "conservatives" – terms which should NEVER be applied to courts, but which always are – respecting the appropriate role of the judiciary. "Conservatives" believe that the Constitution means what it says; "liberals" believe it means what it ought to say. Put another way, "conservatives" measure a judicial outcome by its fealty to the text and history of the document the decision purports to interpret; : "liberals" measure a judicial outcome by its policy result.

Predicting the editorial positions of The New York Times and other media organs is easy. If plaintiffs win, and gay marriage becomes the law of the State, they will intone piously about the thoughtful opinion supporting their preferred result. If plaintiff’s lose, they will lament the inability of the Court to get beyond prejudice, etc. In short, from the perspective of the Left, the result matter, not how the result is achieved. The Right dissents, believing that, in a democracy, how a result comes about is often as important as the result itself.

No one can honestly argue that the 1947 New Jersey Constitution contains a single syllable which mandates state recognition of gay unions; it’s a patently silly argument. Constitutions are not ciphers, to be filled with such content as four judges of the highest State Court deem desirable. They are, instead, fundamental charters, the foundation of the positive law. They mean, today, precisely the same thing they meant when they were written and ratified. They do not change over time unless the people choose to change them. They contain no hidden rights. Nor are they the exclusive province of lawyers and judges; they were written for – and ratified by – the people. They mean what a person, untrained in the law, would take them to mean.

Hence, an advocate, asserting that a particular "right" is contained in the constitution, labors under the burden of identifying a specific clause which contains such a right. Recall, a constitution not only creates a government by defining its powers, it limits those powers as well, usually though specific restrictions on power and the inclusion of a Bill of Rights. That is, it takes certain subjects out of the democratic, political arena. Justifiably so. But in the absence of a specific constitutional provision (in a state constitution) restricting governmental action, the democratic process is the default setting. Put another way, unless the restriction on democratic self government is clear, the government may properly legislate on that subject.

Which brings us full circle. Not one word in the New Jersey Constitution even so much as remotely hints that the State may not restrict marriage as the Legislature sees fit.

Hence, however sincerely one might believe that the document ought to contain such a right, simple honesty compels the conclusion that the document, as presently written, does not.

No judicial candidate ought ever be confirmed if she cannot identify a decision, the outcome with which she agrees, but from which decision she would have dissented, on the grounds that same exceeds the proper scope of the judicial power.

Liberals and conservatives should be able to disagree on the merits of a particular policy, yet agree that same is not included as a constitutional imperative. That is, they should be able to agree that, in a democracy, the people, not judges, make policy.

Hypocrisy Across the River

Not being from New York, I attend political commercials for NY pols with mere academic interest. But when they present such a juicy target ...

Alan G. Hevesi presently seeks your support for re-election as New York’s Comptroller. A quick look at the news reveals him to be something of a typical Hudson County pol. For three years, he used state employees to chauffeur his wife around, only to later apologize and reimburse the taxpayers to the tune of $83K. (One cannot help but wonder who he’s renting his residentially zoned property to?)

So commences the commercial, for this New York State official whom, insofar as one can tell, has nothing whatsoever to do with federal policy: Alan Hevesi opposed George Bush’s effort to privatize Social Security. (To which, one might reply, "so what"?)

But the truly interesting part follows: Hevesi brags that he, as Comptroller, made $40 billion for New York pensioners, through prudent investments.

OK, let’s get this straight: private folks investing in the market, in real estate, in bonds, etc., with money which would otherwise be spent by the Powers-That-Be in Washington, is Bad. A Risky Scheme, or whatever the Dems choose to call it this week.

But investing New York Public Employee pension funds in the market, in real estate, in bonds, etc., is a wonderful thing, for which the people should be thankful – and reelect Alan Hevesi, the mastermind of that undertaking.

So, the precise same investments which yielded such a wonderful bounty for the State of New York’s public employees cannot be trusted for the security of the rest of citizenry.

It never ceases to amaze me that the people fail to take offense at politicians who insult their intelligence.

McGreevey Agonistes

The Daily Record’s Fred Snowflack recently reviewed Jim McGreevey’s new book, The Confession, describing Hizonor’s working-class upbringing, contrasting same with more affluent recent governors, and referring to him as among New Jersey’s poorest Governors. In this observation, Snowflack proves more than typically perspicacious.

A "confession" involves a "formal declaration of guilt". About his sexual predilections, such confession as McGreevey owes belongs to his wife (wives), his children, has family, and God. Being gay constitutes no offense against the public, nor does purely private behavior, however reckless. The polity is owed no apology and can grant no absolution.

McGreevey’s political record as Governor, however, represents an entirely different matter. For his politics, not his sexuality or his sexcapades, are the people owed an abject apology. In this often smarmy, often pretentious book, they receive not their due.

Allegedly because he felt the necessity – for whatever reason in this day and age – to lie about his sexuality, McGreevey became accomplished at lying about everything else, too. His campaign speeches were lies, from beginning to end. As democracy depends upon the willingness of those who would represent the people to fully and honestly expound their policies, accomplished liars like McGreevey constitute a mortal threat. If, once elected, he failed to break a single campaign promise, it escaped public notice. (Your humble author publicly promised to eat his hat, without salt, if McGreevey failed to raise taxes in his first budget, despite his promises to the contrary. No hat ever slept more peacefully, utterly secure in the certainty of that prediction.)

McGreevey’s recapitulation of his rise to power reads like a political horror story, of being in bed (figuratively, in this case) with every sleazy "warlord" in the State. Perhaps unsurprisingly, the number of references to allies and confidants who either went to jail, resigned in disgrace, or should have done so, boggles the mind.

Having associated with rogues, villains, and scoundrels throughout his political career, it seems almost comic that it surprised McGreevey when they acted true to form when he appointed them to office. For a man obsessed with details, he repeatedly managed to overlook the fact that many of his associates viewed governmental service as nothing more than a license to pillage, an opportunity to cash in on power. In fairness, McGreevey wasn’t among them; like Bill Clinton, ego, not money, drove his persona. But for his policy, associates, and appointees, he should grovel and beg the population’s forgiveness.

Despite his repeated attempts to establish his scholarly bona fides (how many times can one recite Kant’s name?), McGreevey seems woefully ignorant of basic economics, perhaps due to the fact that he spent virtually his entire life in government. His tax, borrow, and spend policies produced a moribund economy, with precisely zero private sector job growth, while massively increasing the governmental sector.

In part, he suffers from the same economic illiteracy which afflicts all liberals. They’re so anxious to do Good Deeds (with other people’s money) and to make society better, that they neglect the inconvenient fact that, faced with ridiculous taxation, productive people, capital, and businesses seek greener pastures. McGreevey brags about a $600 million tax increase on business (calling the failure to impose high taxes "corporate welfare"), and crows about the massive fines he imposed, never seeming to connect massive tax increases and an adversarial approach to the productive sector with the stubbornly flat New Jersey economy. He boasts about unilaterally preventing development on 300,000 acres of land, without even the slightest concern about the economic devastation wrought upon wholly innocent landowners denied their property rights. (Only "developers" were injured, don’t you know?)

He recognizes, now, that his rhetoric "... sounded like a Bolshevik." Had any Republican used that wholly appropriate description, the Daily Record and the rest of the media would have taken us to task for employing inappropriate hyperbole. At least on this score, it’s nice to have a master practitioner of the fine art of demagoguery admit it himself.

McGreevey repeatedly claims to oppose such practices as "Pay to Play"; he did ... well, what, precisely, to combat it? (A weak-kneed Executive Order which, he avers, could not have been advanced by any politician with a future in New Jersey, despite the fact that a scant few months later, the Legislature passed precisely the same measure, essentially without dissent, but only after the Democrats defeated Republican efforts to give it some real teeth) He castigates the system of "Bosses" which permits a few men to make or break candidates, but he did ... well, what, precisely, to reform it? (He could, as easily, have supported the abolition of the Party Line, which would defang the bosses in a stroke, or supported a state level Hatch act, to deprive public employees of their disproportionate influence) He claims to oppose sprawl and favor revitalized cities. That’s easy; repeal Mount Laurel. Apparently, the thought never crossed his mind.

And he hasn’t lost his passion for mischaracterizing a problem. He contends that high property taxes result primarily from our tradition of "home rule". Nonsense. They’re high due to inane Court rulings, like Abbott, which misallocate literally billions in state funds, and state policies which effectively insulate many spending decisions from the voters.

He can’t do math. His exquisitely idiotic envy tax – er, "millionaire’s tax" – allegedly affected 28,000 taxpayers and reaped $800 million. That’s $28,000 per, not $850 as McGreevey contends. Again, unsurprisingly (see "Bolshevik", above) the predictable results of his fabulously ill-advised policies were economic stagnation and the flight of productive folks from the state. Both happened.

If you received your "property tax relief" (HA!) check recently, you know that the rebates this tax was supposed to underwrite proved evanescent. McGreevey averred that the tax would be "temporary", but it was the tax relief they allegedly provided which proved fleeting.

Only when he describes Christie Whitman as an aloof, out-of-touch elitist does he hit the mark. On the campaign trail, he quite properly lambasted her – and poor Bret Schundler, who had the unenviable job of defending her legacy – for her inexcusable, irresponsible borrow and spend policies and her raids on the pension funds. Displaying his unwavering talent for hypocrisy (and proving the theorem that Republicans can invent no bad idea which Democrats can’t perfect), no sooner had the votes been counted that he embarked upon precisely the same borrow and spend policies, only worse, while also refusing to fund the pension accounts.

McGreevey’s book, time and time again, provides damning evidences of his craven, political cowardice. He contends that he knew which policies were right (and, occasionally, actually gets it right), but repeatedly cowered in spineless fear, lest he upset one of the powerful Democratic "warlords".

Leaders lead. They say what they mean and mean what they say. The only times McGreevey demonstrated the slightest moxie was taking on perceived Republican constituencies, such as landowners in the Highlands, business, or the so-called "rich". Never once, even when he himself admits it was the right thing to do, did he truly challenge the corrupt bastions of Democratic power.

History may remember McGreevey for his "gay American" speech, but New Jersey residents should remember him for his disastrous policies and appointments. His legacy: our grandchildren will be paying for his illegal borrowing 30 years hence. It will take years for the economy to recover from his "Bolshevik" policies, assuming that they’re reversed (and, alas, the present Administration seems ill-disposed to recognize the mistakes). His flagrant political dishonesty, and his appointment of rogues, scoundrels, pirates, and politically connected incompetents to positions of responsibility, did much to reaffirm citizen cynicism about those who would serve them.

But, then again, this is less a political tract than a gay tract, about how "... the closet is a sick, sick place". Nonsense. There exists not the slightest reason for anyone, gay or straight, to be (publicly) "honest" about what he does between the sheets, as it’s absolutely noone else’s business. (Unless, of course, you put your lover on the payroll) Consider Ed Koch, lifelong bachelor, sometimes rumored to be gay. And that – properly – is as far as it went. What he did sexually – if anything – and with whom, was no one else’s cotton pickin business. As it should be. The correct response to someone who inquires about a politician’s private sexual behavior is, for the most part, "what would possess you to ask such an impolite, impertinent question"?

Contrary to McGreevey’s assertion, it is not the closet which is sick, but the seemingly pathological exhibitionism which afflicts society generally and gays in particular. When someone comes out, the correct response should be, "please, go back in again." What one does in the bedroom, and with whom, should stay in the bedroom. As a wag wrote, "the love that dare not speaketh its name will not shutteth its mouth." Private matters should remain private. (And it’s not as if essentially everyone in Trenton didn’t know he was gay. We just didn’t care. Most of us still don’t.)

Politicians need not, contra McGreevey, be publicly "honest" about their sexuality. But they MUST – repeat MUST – be impeccably honest about their policies. An effective democracy requires nothing less.

Seize the Sleaze

Comes now my colleague, Assemblywoman Linda "the Spender" Stender, and her fellow Democratic Congressional aspirant Paul Aronsohn calling on House Speaker Dennis Hastert to resign. The charge: that under his watch, a gay Republican sent inappropriate E-mails to a former House Page.

Now, the idea that the Speaker would somehow cover up that actions of a gay pedophile for political advantage seems, on its face, patently absurd. Virtually every district in the country is so gerrymandered that the other has little chance of a pickup. It would have been a small matter to persuade Foley to step aside long ago, replacing him with another readily electable Republican.

But do we detect the umistakeable odor of hypocrisy emanating from the Democratic camps?

Aronsohn’s website shows him holding a "Clinton" sign. Surely you remember Bill Clinton? You know, the guy who engaged in a sexual liaison with a subordinate of the sort that would get most CEOs instantly cashiered? The guy who then lied about it, under oath, sometimes referred to as "perjury", an action so egregious that his home state revoked his license to practice law? At the time, the same man who is, now, so outraged about the Speaker’s asserted failure to take some action actually served in the Administration of the aforementioned Bill Clinton.

An internet search, and a perusal of Arohsohn’s website, fails to reveal any commentary suggesting even the slightest embarrassment over Clinton’s actions. No call for Clinton to resign. Aronsohn did not resign in protest. Nada.

Having completed his service to the Administration of an adjudicated perjurer, Aronsohn returned to New Jersey to serve in Administration of that paragon of virtue, James E. McGreevey. Let’s see. McGreevey puts his lover on the payroll. His top aides are investigated for profiteering on billboard deals. He appoints numerous folks to high office who engage in unethical and, indeed, almost criminal behavior. Aronsohn’s role? Mouthpiece, defending the least defensible administration ever to occupy the State House.

Aronsohn now admits, with the unparalleled courage of hindsight, that what McGreevey did was wrong. But where was his courage at the time? Where was his righteous anger then? Where was his resignation in protest, his call upon the Governor to resign, his inexpressible outrage at a time when it might have made a difference? The search reveals not a single syllable from Aronsohn protesting the patently improper – perhaps criminal – actions of McGreevey or his cronies.

Similarly, a search fails to record so much as a single quote from Assemblywoman Stender critical of Jim McGreevey while he was in office. Indeed, she supported all his programs, his insane tax increases, his absurd spending increases, his outrageous borrowing. And that’s only the policy side. Although one of the quieter Members – the only bill she sponsored which achieved any measure of notoriety was one which urged censorship and book banning – she might, if she had the slightest courage, have spoken out, urging the Governor to resign, when it became apparent that he put his gay lover on the payroll, let alone when it became clear that his Administration represented a full-employment program from every rogue, scoundrel, and profiteer in the Party.

Unlike the Democrats, who remain loyal to their sleazeballs, as they did with Garry Studds, who actually engaged in sex acts with a 17 year old male page, the Republicans would never have tolerated Foley in their midst, once his actions were known. The assertion that Speaker Hastert knew about these charges, and yet did nothing, seems preposterous on its face. The idea that he should resign his post because one Member engaged in gross behavior is absurd. Although both Arohnsohn and Stender were either too young or simply anonymous at the time of the last Page scandal, my memory does not include any calls from prominent Democrats for the resignation of then Speaker Tip O’Neill.

Aronsohn’s website claims that he "... rejects extreme partisanship". It is to laugh. Essentially every Democrat in the country has seized upon the unconscionable behavior of one Member for "extremely partisan" purposes, as if ANY Republican supported that sort of behavior.

New polls show that just about as many people are disgusted by the display of partisan opportunism as they are by Foley’s abominable conduct. In attempting to smear the GOP with this particular scandal, the Dems may finally have gone too far, and demonstrated to the public that there is no level to which they will not stoop in their insatiable quest for power.

Political Propaganda at Taxpayer Expense

This week’s mail brought with it a communication from the State of New Jersey. Prominently displayed on the outside of the form, in bold letters, with all the subtlety of a Publishers Clearing House contest announcement, blared the words: "Property Tax Relief Inside".

Inside, I found a check in the princely sum of $200, or about 2.5% of my property tax bill. This, of course, is down dramatically from the rebates sent out under the last Republican Administration, and even lower than those provided under that noted tax cutter, Jim McGreevey. But beggars can’t be choosers, I suppose; better $200 in my hands than in the hands of the avaricious spendocrats in Trenton.

Which brings us to the content sent along with the check. Same reads:

"New Jersey’s honest and fiscally responsible State budget reflects my commitment to preserve programs of critical importance to our citizens", /s/ Jon S. Corzine.

A political commercial!

Official correspondence from the State ought not contain gratuitous political commentary from Hizonor.

In truth, the budget was neither honest nor fiscally responsible. Contrariwise, it represented yet another indefensible Democratic porkfest, with hundreds of millions – which could have gone to property tax relief for hard pressed suburbanites – inexcusably diverted for goodies to favored Democratic constituencies, like Newark and Camden. Camden, so responsible that it has a state appointed financial monitor, who makes more than the Governor and lives in Delaware. Newark, the Mayor of which took $48000 worth of foreign travel and billed it to the State’s taxpayers. These are the folks this "honest and fiscally responsible budget" subsidized, while increasing taxes by about $1.5 billion and increasing spending by 12%.

If the Governor wishes to engage in political propaganda, he owns a huge personal fortune, and the Dems are masters at raising money from people who wax fat at public expense. It’s simply unconscionable that they employ official communications for crass – and dishonest – political purposes.

The Swamp Dog Snarls

A reporter, hearing about a possible political scandal, turns to a Well Informed Source whom, it transpires, is a convicted felon. He uses the information that source provides in his page one story on governmental corruption. Is such a "dirty trick"? "Sleazy"? "Gutter politics"?

The United States Attorney, probing political corruption, turns to a "jailhouse snitch"? A "dirty trick"?

Comes now the normally wise – or, at least, sober – Monica Yant Kinney, buying into the Dem allegations that pointing out the obvious – that Senator Menendez walks some very fine ethical lines, if not actually crossing thereover – is somehow beneath a man of Tom Kean’s reputation.

Pshaw.

One of the Kean campaign’s independent opposition researchers, looking for information about Menendez, turned to a man who might very well possess it: Robert Janiszewki, former (Democratic) Hudson County Executive and present guest at Club Fed. In Hudson County, people play hardball politics and bear grudges. It might be that said convicted felon had information about Menendez’s activities. Such was an entirely justifiable assumption. (Indeed, if the Kean guys didn’t call Rudy Garcia, they’d stand convicted of political malpractice).

For this completely defensible undertaking, Kinney echoes the Democratic establishment’s assertions that Kean has somehow slipped into the mire of "negative campaigning".

Menendez suffers, somewhat, from guilt by association, but only because his associates display an unfortunate tendency to end up behind bars. Obviously, if one’s (present or former) friends, confidants, advisors, and political colleagues now mark time in The Big House, one wishing to inquire of them need, of necessity, reach into some sleazy neighborhoods. But the fault does not lie with the investigator, but with the crooks.

If Bob Menendez were nominated to the federal bench, the FBI would CERTAINLY inquire of men like Janiszewski – and other unsavory sorts – precisely what they know. Should a United States Senator undergo less exacting scrutiny?

Elections are democracy’s cleansing devices. It’s simply not sleazy to point out someone else’s sleaze. Nor is it underhanded, nefarious, or objectionable to search into a candidate’s past, bringing to the fore RELEVANT issues.

(By way of example, everyone involved in politics knew that McGreevey was gay when he ran for office, even if he refused to admit it to himself or, even, to his wife. But, generally, what one does between the sheets should stay there, as it impacts little upon one’s ability to govern – provided, of course, that the object of one’s affections is more than 16. Private foibles differ from public actions.)

Hence, it’s entirely proper to note that an office holder seems to be profiting from his office; it’s not proper – for the most part – to comment on his relationship with his wife, his personal finances, etc. Those matters, mostly, do not reflect on an office holder’s public ability.

Simply put, it's not "negative campaigning" – in the bad sense – to point out the truth, as long as one does it honestly and fairly. If one accuses another candidate of questionable ethics and surrounding himself with folks of questionable ethics – and those accusations happen to be true – what's wrong with that?

And Frank Lautenberg – aptly described by one of his own aides as a Swamp Dog – should be careful at whom he swings. Here is a man, at 82, who initially won office, in part, by asserting that Millicent Fenwick – then 72 – was too old and doddering to serve. In short, he knows a thing or two about "gutter politics" – sleazy, unfair campaigns – having waged at least one himself.

The questions about Menendez’s ethics are real and substantial, just as were those affecting Bob Torricelli. While perhaps not quite as blatant in feathering his own nest, it seems patent that Menendez personally profited from his office, renting to a tenant dependent upon federal (read, taxpayer) funds. Too, the incestuous recycling of public dollars – from the taxpayers to Menendez confidants in the form of outrageous salaries, then to Menendez in the form of personal income for inflated rents and politically, in the form of massive campaign contributions – even if not illegal, is rotten to the core.

Does Kinney mean to assert that raising ethical questions is beyond the pale? Or merely that such should be the sole and exclusive province of the media? Any reporter worth her salt, seeking the full story on Hudson County and Bob Menendez, would CERTAINLY reach out to everyone with information, wherever they might be. And, yet, she castigates a politician for doing precisely the same thing.

Or is it simply over the top when a candidate seeks out a felon of the opposite party who, of old, chummed around with the opposition candidate?

If elections are to serve the cleansing purpose a democracy requires, the candidates must not be castigated for raising legitimate questions about each other. Or for using perfectly legitimate investigatory techniques – such as writing letters – to discover the truth. It’s only "dirty politics" when the charges are unfair and, it this juncture, Kean’s charges against Menendez seem right on the money.

Judicial Restraint

OpinionJournal.com today features a lamentation respecting the (allegedly) increasing attacks on the Judiciary, penned by erstwhile Associate Justice Sandra Day O’Connor. Heronor worries that the increased frequency of "attacks" upon judges "... presents a grave threat to the independent judiciary".

When an advocate for an "independent judiciary" offers such an argument, I fairly burst with the question: "independent of what?" If, by "independent", one means that a Judge must follow where the law leads, irrespective of the political consequences, that is PRECISELY what a judge must do. If, on the other hand, one defines "independent" as free from any constraint upon one’s unbridled discretion, I respectfully dissent.

Justice O’Connor humbly admits that Courts sometimes arrive at incorrect decisions. But her solution lacks a certain pizzazz: "Judges can--and do--sometimes render erroneous decisions, but that is why appeals are allowed to higher courts." Ah. The only check upon a rogue -- or simply mistaken -- Judge rests with more judges. But what happens when the Court which issues the most indefensible opinions also happens to be the Court of last resort?

Unsurprisingly, the folks who commented on Justice O’Connor’s piece displayed very little sympathy for her position, and quite properly so. In brief, they responded: "you (judges) brought it on yourselves".

New Jersey should understand this in spades. Our Supreme Court almost single handedly created the insolvable property tax crisis with the utterly absurd decisions in Robinson v. Cahill and Abbott v. Burke, neither of which decision enjoys even the slightest pretense of support in the actual document the Court purported to construe. The Court helped create sprawl with the indefensible Mount Laurel decisions. It engaged in a spectacular version of creative constitutionalism in death penalty cases, essentially making up the rules as it went along. It invented a right to abortion out of whole cloth, when there exists not a shred of support for that policy in the document. In the reapportionment cases, it proved that it is not only illiterate, but innumerate as well, failing to understand that 1+1=2, not 3. In the Torricelli and Suliga cases, it simply ignored statutory language it considered problematic (essentially because the Legislature did not add the words "AND WE REALLY MEAN IT" after it established seemingly inviolate time limits). And it’s a very good bet that the Court is about to invent a right to gay marriage.

Some of the results of these decisions might constitute good policy. In the US Supreme Court’s case of Lawrence v. Texas, the Court ruled that a state may not proscribe voluntary sexual contact between consenting adults, a result which any good libertarian ought to cheer. But any student of the appropriate scope of judicial power ought to cringe in agony. However desirable the result might be, no Court possess the right to rewrite the Constitution to compel it.

Our federal Supreme Court, likewise, often sits as a permanent constitutional convention, ignoring constitutional rights which actually ARE present in the document (the right to keep one’s property absent governmental seizure thereof for "public use") and creating "rights" which do not. (Privacy).

Some folks aver that the Constitution is a "living, breathing document". Au contraire (to cite foreign precedent in support of an American constitutional argument). The meaning of the Constitution is fixed and immutable. It means precisely the same thing today as it meant when the people adopted it. If society feels that changes need to be made, the amendment process offers the only legitimate method of effecting such changes. Every time I hear the Constitution referred to as "living and breathing", I immediately want to wrestle it to the ground and make it stop twitching around. The foundation for all other law rests on that document, and the consequences of building an edifice of law on a foundation which refuses to stay still can be disastrous.

Judges most certainly SHOULD fear for their jobs when they behave in a manner which demonstrates that they failed to read the job description. They are not oracles, endowed with black robes to lead a benighted people into a more enlightened age. Their role does not include pronouncing on "evolving standards of societal decency"; the words "penumbras and emanations" should be excised from their vocabulary. Their SOLE legitimate role is to interpret the document placed before them in light of the intentions of those who wrote and adopted it.

People around the nation react with completely understandable fury when unelected lawyers purport to create social policy. All the judiciary need do to avoid being the subject of political crusades is stay out of politics as, for instance, leaving the definition of marriage to the Legislature, where it belongs.

This issue has particular relevance to New Jersey voters this year. The most recent appointments to the Supreme Court – John Roberts and Samuel Alito – represent precisely what judges ought to be. Perhaps unsurprisingly, Bob Menendez voted against Alito and, likely, would have echoed Senator Lautenberg’s vote against Roberts.

Both Roberts and Alito were stellar choices, fabulously qualified. And, yet, Menendez voted against Alito for reasons which clearly indicate that he, Menendez, also doesn’t care about the legitimate scope of judicial authority, provided that the Judge delivers the preferred policy outcome.

Tom Kean supported both these inspired nominations, despite the fact that on some issues, he probably would support policies which the Judges, as Justices, would decline to impose upon the American people as Constitutional imperatives. In so doing, Kean demonstrates that he understands the appropriate role of a Judge, whereas Menendez most certainly does not.