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Chris Christie’s showdown with judicial activism in revolutionary New Jersey.
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“Many of these decisions have been results in search of a rationale,” Christie has observed. “And that’s not the way to appropriately interpret the laws and interpret the constitution. And there have been any number of examples of that over time.”
Christie set off a dispute last May with the state Senate when he decided against the reappointment of a sitting Supreme Court justice. Under the N.J. Constitution ratified in 1947, all lower-court judges and Supreme Court justices are appointed by the governor. After a period of seven years, they are then eligible to be reappointed by the governor with tenure until mandatory retirement at 70.
When Associate Justice John Wallace petitioned for reappointment, Christie took the opportunity to deliver on his campaign pledge to remake the judiciary and settled on an alternative nominee last May. It was the first time in 63 years that a Supreme Court judge seeking tenure was denied. However, Senate President Stephen Sweeney, a Democrat, refuses to hold confirmation hearings for Anne Patterson, the former deputy state attorney general, whom Christie has selected.
“Revolution is a good word to describe what Governor Christie is trying to do,” said Thomas A. Gentile, a New Jersey attorney who is active in the Federalist Society. “Christie campaigned for governor on his unabashed promise to end the New Jersey Supreme Court’s decades of over-reaching. His ultimate goal is to restore to the governor and to the legislature the constitutional powers that Supreme Court decisions such as Abbott and Mount Laurel have entrenched in the hands of the judiciary. Those decisions — with their court-imposed spending requirements and endless judicial oversight — have handcuffed the governor and the legislature, preventing them from implementing innovative solutions that go beyond just spending more taxpayer dollars on the same old failed approaches that the Supreme Court years ago imposed unilaterally. That’s why Governor Christie has made it a priority to end judicial activism in New Jersey.”
Gentile, who in 1996 and 1997 served as a law clerk to Samuel A. Alito, Jr. (then a Judge of the United States Court of Appeals for the Third Circuit), anticipates that Governor Christie will make the composition of the state Supreme Court an issue in New Jersey’s next round of legislative elections this fall. “In 2010 Governor Christie upended politics-as-usual in New Jersey by urging the people to come out to vote in local school budget elections,” he observed. “Governor Christie transformed those school budget elections — which had always been rubber-stampings of backroom deals between unions and municipalities — into referenda on his agendas of fiscal and educational reform.”
There is no debating the legal standing Gov. Christie has to deny reappointments and to make his own selections, Earl Maltz, a Rutgers University law professor, said in an interview. Although the standoff between Gov. Christie and Sen. Sweeney has disrupted the normal flow of politics in New Jersey, there is a potential upshot in that it could help clarify key constitutional questions, the Rutgers professor points out.
There is an argument to be made, for example, that a careful reading of the state constitution precludes Chief Justice Stuart Rabner from making a temporary appointment to the court, unless it falls short of a quorum. Nevertheless, Rabner has appointed Chief Appellate Judge Edwin Stern to fill Wallace’s seat.
“I think he [Rabner] lacked the authority to make this appointment particularly within the context of the situation we are talking about,” Maltz said. “To be fair, he’s not the first to do this. That authority only comes into play when the court falls below the number needed to have a quorum and this could become an issue once we have another vacancy, which will be soon.”
Justice Roberto Rivera-Soto has already announced that he will step down in September.
“That’s when the legalities get a little dicey,” Maltz observed. “Once you get below five justices you do not have a quorum and at that point it’s pretty clear the chief justice can make appointments.”
Although Christie has the option of making a recess appointment, which would expire at the end of the next regular session in the N.J. Senate, he has made it clear that another appointment will not be made until after his current nominee receives a hearing.
Within the next few months, the standoff between Gov. Christie and Sen. Sweeney will likely come to a head. The Supreme Court has asked Superior Court Judge Peter Doyne to hold fact-finding hearings on the $820 million Gov. Christie has cut from public schools in an effort to close the state’s budget gap. If Doyne recommends a restoration of the funding, Christie could take the opportunity to force a final showdown over the court’s ability to shape policy without popular consent.
It is worth recalling that when taxes were imposed on New Jersey residents during the colonial era without any recourse to elected officials, it was called “tyranny.” In the current political cycle, Sen. Sweeney calls it “judicial independence.”
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online