No on Albin

Now, one case does not (necessarily) a career make. But few cases decided by the New Jersey Supreme Court in recent years rankle Republicans as much as the infamous Torricelli switcheroo case.

Recall the facts: Senator Torricelli long labored under an ethical cloud, but as the 2002 general election approached, the Senator’s flagrant misbehavior exceeded even the tolerance of the jaded and forgiving New Jersey electorate – and that of the wholly cynical Democratic Party. With poll numbers plumbing depths even President Bush never explored, Torricelli stood little chance of reelection. Faced with the loss of a crucial Senate seat, the Democratic power brokers importuned the good Senator to step aside in favor of a more electable alternative: former Senator Frank Lautenberg.

One tiny, weeny difficulty: NJ statute permitted substitution of a withdrawing candidate only up to 51 days before the election; Torricelli’s "withdrawal" occurred a scant 36 days prior thereto. Hence, pursuant to any reasonable reading of the statute, no substitution could be legally effected.

But our NJ Supreme Court – never one to allow trivialities like the language of a statute to stand between it and a desirable result – simply ignored the legislatively imposed limit. The rest is history: the Democrats chose former Senator Lautenberg and essentially the entire Forrester campaign, hitherto directed squarely at Senator Torricelli, became moot. Millions of dollars in campaign expenditures became useless. And Senator Lautenberg cruised to (re)election.

This was most certainly NOT a partisan decision. The opinion bore the signature of Chief Justice Poritz, a "Republican" appointee, and every Justice joined therein, including ostensible Republican appointees LaVecchia and Verniero. Had it been the GOP seeking to game the system, the same Justices might have ruled the same way (although, curiously, it always seems to be the Democrats bending, or ignoring, the rules for partisan advantage). No, the decision smacked less of partisanship than of arrogance. A committee of seven lawyers encountered a rule they didn’t like, so they ignored it.

This history lesson becomes relevant because Justice Albin – who concurred in this decision – now seeks reconfirmation for tenure. In few other cases has judicial arrogance been quite as patent. And, therefore, it behooves a candid Senate to consider whether a Judge who cares so little about the plain language of a statute should sit in judgment of their work.

In his opening statement to the Judiciary Committee, Justice Albin – obviously anticipating the line of questioning– averred that he always sought to give expression to the legislative will and opined that, ordinarily, the clear and unambiguous language of statute is the best indicator of legislative intent. Former Chief Justice Zazzali, supporting his old colleague, contended that Albin accorded "extraordinary deference to legislative intent."

But while Albin asserted that the Court always strove to determine the drafters’ intent when reviewing statutory language, and that he only voted for a result when he felt that the law so compelled, he averred that statutory language was often "nuanced" and "susceptible to alternative meanings".

Ah. Well, a simple query: what is "nuanced" about the number 51? Is that number subject to "interpretation", "liberal" or otherwise? Does it mean something different, depending upon which way one reads the sentence? Is 51 "susceptible to alternative meanings" such that it really means 36 after close scrutiny?

Indeed, is this not a relatively simple, either/or matter? That is, either the legislatively enacted limit means what it says, or it does not.

No, the statute was not "nuanced" nor subject to legitimate alternative readings; it specifically, unequivocally permitted substitutions ONLY if they occurred at least 51 days prior to the election.


Yet every Justice, without exception, ignored that unequivocal, numerical limitation.

Reading the opinion actually produces some chuckles, for those with a somewhat macabre sense of humor. Justice Poritz, quoting statutory language from other States, noted that Legislatures sometimes added statements such as "the failure to do so shall be a fatal defect". Apparently, the lesson from the Court to the NJ Legislature is that when the latter wishes the Court to pay close attention, it needs to add an additional clause – "and we really, REALLY mean it!!" Perhaps, if the Legislature added a few exclamation points, the Court would accord the language its actual meaning.

In fairness, Justice Albin does not stand out as a particularly egregious offender, but his profession of deference to Legislative prerogative rings exceptionally hollow. No judge who paid the slightest attention to legislative intention could have concurred in the Torricelli case. A judge with a sense of humility would clearly question the Court’s precedents in abominations like Abbott and Mount Laurel, not because of the results at which they arrived – problematic though they are – but due to the utter lack of any constitutional authority for said results.

Justice Albin hit the nail precisely on the head when he averred that a Justice should arrive on the Court without an agenda, dedicated wholly and completely to the law. He described a gift he received from his former firm: a glass encased flag with the motto – "Commitment to judicial independence: total and uncompromising".


But, one more query: independence from what? From politics? Yes. From ideology? Certainly. But "independence" from an obligation to accept the Constitution and statutes as they are, rather than as the judge might wish them to be? That sort of "independence" bespeaks both a political and ideological agenda, the antithesis of that in which Justice Albin purports to believe.

Absent a specific apology for the Torricelli case, Justice Albin should not receive tenure, not because the result shafted a Republican, but because he joined in an opinion which utterly ignored the clear text of the statute. As Senator Baroni hinted, in a question respecting criminal law, if the Court perceives a defect in the existing law, it does not necessarily possess the power to correct that defect itself. Often – as was clearly the case in the Torricelli case – if a defect in the law produces a problematic result, it falls to the Legislature to correct it.

Apparently, Justice Albin fails to appreciate this basic limitation on the power of the judiciary, and, hence, should not be confirmed for tenure.

No on Albin