Judicial Matters

Our new Governor suffers from no lack of advice.  Much of it, contained in the transition reports, deserves prompt attention. 

Obviously, economic prosperity benefits everyone, and – as our state motto provides – “liberty and prosperity” are inextricably intertwined.  As his predecessors conclusively demonstrated, huge government, crushing taxation, and massive regulation – the antithesis of liberty – also preclude prosperity.  The “most vulnerable” among us are infinitely better served by the boundless opportunity a free and prosperous economy produces than by obscenely expensive, economically catastrophic, governmental guarantees. 

So: impose a low, flat, income tax; eliminate the death tax and corporate taxes; cut spending EVERYWHERE, however much the left screams about balancing the budget on the backs of the poor; listen to Bret Schundler and endorse school vouchers (which advance freedom and cut costs); veto any spending program which contains an affirmative action or prevailing wage requirement; eliminate interest arbitration, tenure, and other cost drivers; repeal the Highlands Law; insist that adults who receive a benefit from government (like a college education) give something back in return; abolish defined benefit pension programs.

In short, get government out of the redistribution business.

But there’s a huge caveat: many of the most profoundly destructive policies of the last half century resulted from judicial mandates.

Were those judicial decisions based upon a fair reading the NJ Constitution or of a statute, they would be entirely unobjectionable. But, repeatedly, decisions of the New Jersey Supreme Court lack any basis in the text and history of the relevant document and represent nothing more than the policy preferences of the Court.  These illegitimate, profoundly destructive decisions must be reconsidered.

Consider: a simple phrase in the Constitution, empowering municipalities to zone, somehow morphed into an obligation to construct low-income housing on pristine meadows in the boonies. A constitutional obligation to establish a “through and efficient system of free public schools” metastasized into a mandate to underwrite the entire cost of public education in certain favored urban municipalities. (To the tune of more than $30K per kid in some towns).  That same constitutional provision, which restricts its scope to kids between five and 18, somehow now requires preschool for three- and four year-olds.

And these represent only the tip of a judicially created iceberg.  The Court declared a portion of our own Constitution illegal when it produced legislative districts the Justices disliked.  It ignored clear time limits in a statute to facilitate the infamous Torricelli switcheroo.  It spent decades frustrating the imposition of capital punishment on indisputably guilty murderers.

The merits of the policies themselves are irrelevant; judges possess absolutely no authority to impose even the most salutary policies upon a recalcitrant polity.  The people – directly through the Constitution or indirectly through their elected representatives – are free to make idiotic laws (and, alas, routinely do).  A judge, confronted with a truly moronic law, might sigh and shake her head, but may not legitimately ignore it.

Few Justices of the Supreme Court have ever been noted for even modest constitutional  scholarship.  And it shows.  Often, a dispassionate reader of a Supreme Court opinion wonders when the political tract will end and the judicial opinion begin. (Generally, the more ringing and strident the prose, the worse the opinion)

The Governor’s judicial nominees ought to be clearly on record as expounding an originalist philosophy: the constitution means what the people who wrote and ratified it understood it to mean.  It is not an empty vessel which judges may legitimately fill with their own policy predilections. 

Merely appointing respected lawyers is insufficient.  No one doubts that (say) erstwhile Chief Justice Wilentz wielded massive intellectual firepower, but his tenure was an unmitigated disaster, because he failed to appreciate the distinction between adjudication and legislation.  Former Chief Justice Poritz possessed the requisite resume, but her tenure was even worse.  NOT because the policy results were (necessarily) wrong, but because the judiciary lacks the legitimate power to impose them.  Lawyers who desire to see their policy prescriptions written into the law should run for office; they should be kept far away from the judiciary.

New Jersey’s Supreme Court has been a national embarrassment for decades, repeatedly – and improperly – insinuating itself into the political arena.  The baleful consequences of that judicial usurpation of legislative authority are patent.  A glance at one’s property tax bill demonstrates the hash an arrogant judiciary made of education, zoning, and tax policy.

So, my advice to Hizznonor: select judges who understand the (very limited) nature of judicial power and who will adhere to the text of the documents as written, not as the jurist might wish them to read.

Judicial Matters