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Gov. Chris Christie has made clear to the New Jersey supreme court that the Time for Choosing has arrived.
As he transitioned away from New Deal liberalism to Goldwater conservatism in the 1950s, Ronald Reagan began to speak out against “the enemy within” in a series of powerful speeches that celebrated America’s founding principles. In his commencement address at William Woods College in 1952, and at Eureka College, his alma matter, in 1957, the future president described America as a divinely inspired, historically distinct country.
This idea of “American exceptionalism” also figured into the 1964 “Time for Choosing” speech, Reagan delivered on behalf of Sen. Barry Goldwater of Arizona, the Republican candidate for president. But the 1964 speech included an additional component that foresaw the dangers of a renegade judiciary; one that willingly bypasses constitutional restraints. The conflict between Gov. Chris Christie of New Jersey and his state’s Supreme Court interconnects with the anti-constitutional impulses of unelected elites that Reagan foresaw during the Goldwater campaign.
Even as he remained focused on the external threat of Soviet communism during the Goldwater campaign, Reagan also felt a special need to uplift the political system created in 1776 and to defend it against a growing domestic menace. George Nash, a historian and author, who has written extensively on the modern conservative movement, has carefully traced Reagan’s political journey.
Nash, who is also a senior fellow with the Russell Kirk Center for Cultural Renewal, discussed Reagan’s contributions to the concept of American exceptionalism and the timeless appeal of his message during a symposium on the Reagan presidency held earlier this year at Regent University in Virginia Beach.
“He [Reagan] began to speak about the enemy within, the assault at home from those who are either wittingly or unwittingly steering us toward a bureaucratized all powerful state in which government would be a big brother and the individual would be absolutely powerless,” Nash explained in his presentation. “In speech after speech, he railed at the growing complexity, profligacy and unaccountability of centralized government.”
The notion of self-government that was so central to American Revolution was in jeopardy and could be lost to centralized planners, Reagan warned in his 1964 speech.
“If we lose freedom here, there’s no place to escape to,” he said. “This is the last stand on earth. And this idea that government is beholden to the people, that it has no other source of power except the sovereign people, is still the newest and the most unique idea in all the long history of man’s relation to man. This is the issue of this election: Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.”
Unfortunately, New Jersey has succumbed to the power and influence of its unelected judiciary; the very sort of entity that Reagan identified as a potentially lethal threat to the American constitutional order. Despite its own rich revolutionary history, the state has followed a progressive trajectory over the past few decades divorced from constitutional government. As much as contemporary residents relish and revere the “Spirit of 1776,” they actually inhabit a world that was reshaped by the N.J. Supreme Court with a series of rulings on education policy that reach back to Robinson v. Cahill in 1973. That would be the year self-government died in the Garden State.
AT A TIME WHEN the nation is commemorating the 100th anniversary of the former president’s birthday, Christie has very appropriately invoked Reaganesque language in an effort to restore constitutional checks and balances for the benefit of his overtaxed, underrepresented constituents. Christie explicitly campaigned on reforming the N.J. Supreme Court, which has a long history of intruding upon the policy-making authority of the executive and legislative branches. Before the end of his first term, Christie will get that chance. Up until now, elected officials in both parties have permitted the judiciary to interject itself into the public arena at taxpayer expense without a vigorous response.
“We’ve had an unholy alliance of Republicans and Democrats in this state who have the same belief in a progressive interpretation of the constitution that ignores fixed meanings,” Assemblyman Michael Patrick Carroll laments. “This goes a long way toward explaining where we are right now. Judges have consistently substituted their own public policy views for the actual language of the constitution.” An outspoken conservative, Carroll has been sharply critical of his own Republican governors for selecting activist judges who have appointed themselves as the high authority on policy matters that fall outside of the court’s purview.
At issue now, is the latest Abbott v. Burke ruling, which orders the governor and state lawmakers to spend an additional $500 million on schools. In a 3-2 decision, the N.J. Supreme Court has once again declared that it alone has the final say in determining what level of funding satisfies the constitution’s requirement of a “through and efficient” education system. The Newark-based Education Law Center, which brought the suit, argued for a larger restoration of funding to the tune of $1.7 million for the 205 school districts that were not sufficiently funded in their estimation. In a separate concurring opinion, Associate Justice Barry Albin expressed his preference for this larger settlement. But in the end, the court narrowed its ruling to cover just the 31 Abbott districts that were part of the original case in 1985. The dissenting justices rebuked the court for further burdening the state’s already beleaguered taxpayers. But what’s really at issue here is a long overdue effort on the part of a tenacious chief executive to restore the court to its proper station in constitutional orbit. Unlike his predecessors, Gov. Christie has been willing to call out unelected judges who have coerced their overpriced, ineffectual policy preferences on the public and usurped the power to tax and spend from elected lawmakers.
The N.J. Supreme Court justices do not see themselves as a co-equal branch of government, but as a superior branch of government, Gov. Christie explained during a town hall meeting in Robbinsville, N.J. in June last year.
“Now this [Abbott v. Burke] has been an experiment that has been going on for 20 plus years and yet we don’t see much improvement in our public schools,” Christie said. “So, the Supreme Court’s theory that if you put more money in it [the schools] it’s just going to get better by magic has proven to be wrong. And, so, if people wonder why I want to change the Supreme Court, it’s because I don’t have the flexibility to change the school funding formula…They’ve taken the power out of hands of the legislature to make this judgment and out of the hands of the governor and the courts are making it. We’ll that’s wrong, if judges want to legislate, they should run for the legislature.”
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 become eligible for reappointment by the governor with tenure until mandatory retirement at 70. The N.J. high court is comprised of seven members, including a chief justice and six associated justices. At present, the court includes four Democrats, two Republicans and one independent.
When Associate Justice John Wallace petitioned for reappointment last year, Christie took the opportunity to deliver on his campaign pledge to remake the judiciary and settled on an alternative nominee. It was the first time in 63 years that a N.J. Supreme Court judge seeking tenure was denied. Wallace had been part of the problem, Christie explained in his talk. Senate President Stephen Sweeny blocked confirmation hearings for Anne Patterson, Christie’s nominee, for a full year. They reached a compromise in May when Sweeney agreed to have Patterson replace Rivera-Soto instead, who is stepping down come September. Patterson, a former deputy state attorney general, was approved by the Senate Judiciary Committee in an 11-1 vote and last week is expected to secure approval from the full Senate.
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