In response to the latest Abbott v. Burke decision in NJ, a long-running case involving school-funding that goes back to the 1980s, it is not unreasonable to suggest that activist judges should be elected, not appointed. Yes, this arrangement would come with its own consequences, but the courts have already been politicized. I wrote about Abbott v. Burke and how the latest decision fits in with Gov. Chris Christie's efforts to reform the judiciary last week in the American Spectator.
During a conference call with Rutgers University law professors Earl Maltz and Robert Williams that probed into the case, I asked if there was any value in making this change from elected to appointed. They both understandably balked at the idea, since judges would then be subjected to undue influence at odds with detached adjudication. But the NJ Supreme Court has gotten so far out of control to the point where I think it is worth discussing. In other states like Louisiana, where judges do have to stand before the voters, they need to think twice about imposing their own policy preferences as a substitute for applying the law as it is written. Also, keep in the mind the NJ Supreme Court judges have not been shy in the past about making campaign contributions to their preferred candidates.
In Abbott v. Burke, the court once again stepped in to order the legislature to reinstate budget cuts to school districts in the name of a "through and efficient" education, included as part of the state constitution. Williams, the Rutgers law professor, notes that NJ probably took this language from the Pennsylvania Constitution. Yet, none of the judges in Pa. have interpreted this to mean that courts can intrude about the legislature's authority to appropriate funds. It would seem that a conservative activist could play this game from another direction. Under the "thorough and efficient" education clause why not order the creation of a school voucher system. Or, even more to the point, order the state to make budget cuts to deprive the education bureucracy of its ability to perpetuate failed policies.
The good news is that Gov. Christie will get three more openings on the court before his first term is up. His first nominee, Anne Patterson, just recently secured approval from the Senate Judiciary Committee. The bad news is that judges can be very unpredictable no matter who appoints them. But if they are elected, they will have to answer for activist rulings.