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Bench Memos

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Governor Christie: Incompetent or Untrustworthy?



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I am not aware of any group more supportive of Governor Christie’s previous judicial efforts than the Judicial Crisis Network, of which I am chief counsel.  I thought Christie showed great promise in earlier moves to clean up the judiciary.  I also took him at his word when he said, “I want someone who is extraordinarily bright and I want someone who will interpret laws and the Constitution, not legislate from the bench.”  That changed after his nomination of Bruce Harris to the Court.  I am left with only two possible conclusions.  Christie was either astoundingly incompetent in vetting Harris, or he blatantly betrayed his promises, hoodwinking the people of New Jersey to think that he cared about nominating judicial conservatives. 

I don’t come to this conclusion lightly.  

From the outset many have voiced concerns that Harris has neither courtroom experience nor a reputation as a top-tier lawyer.  It appears that he has never practiced anything other than corporate law and never made partner, despite practicing law since 1992. While I can imagine scenarios in which individuals with otherwise stellar credentials and a clearly articulated judicial philosophy would be sound judicial picks, it seems logical that most judges should be drawn from the ranks of lawyers with experience in a courtroom.

If Harris has a cohesive judicial philosophy, it is known only to him and – we can hope – Governor Christie. One would assume some due diligence about judicial picks from a governor who pledged:

I will remake the court and I will remake it in this one simple principle. If you [want to] legislate [then] run for the Legislature, don’t put on a black robe and go to the Supreme Court and there won’t be any justices that I either reappoint or put on that court that do that.

Did Christie interview his potential nominees to probe their judicial philosophies?  Did Harris articulate a clear legal approach and pledge never to legislate from the bench? And did Christie have any evidence that Harris (or his other nominee, Phillip Kwon, for that matter) had adhered to a judicial philosophy in the past that placed consistent legal principles over personal policy preferences?  Without a proven track record, it is too easy for judges to simply tell the governor what he wants to hear. After all, we all would be concerned about undergoing surgery by someone who has never been near the operating room, but was hired on the strength of his self-assessment.  

Furthermore, the only available evidence of Mr. Harris’ views – an email he sent to support gay marriage – shows him to be anything but a judicial conservative.  Granted, there are conservatives who may agree with altering the definition of marriage to include same-sex couples, but the reasons cited by Harris amount to a frontal assault on faith, judicial restraint, and tradition, oozing hostility to religion.

Mr. Harris’ email reads (emphasis mine): 

 You have met me and my partner…, Marc, on more than one occasion…The New Jersey Supreme court has determined that our relationship is entitled to the equal protection guarantees of the State Constitution. 

Mr. Harris cites his partner in defending gay marriage. Would he consider “empathy” in deciding cases?  Is there an originalist case for writing “equal protection” into the New Jersey constitution, despite it not being there? 

 …When I hear someone say…marriage is…between a man and a woman because that’s the way it’s always been, I think of the many “traditions” that deprived people of their civil rights for centuries: prohibitions on interracial marriage, slavery, (which is even provided for in the Bible), segregation, the subservience of women…

Mr. Harris equates traditional views on marriage to supporting slavery.  Would he follow Massachusetts’ lead in shutting down non-profits, such as Catholic adoption agencies, that refuse to facilitate homosexual adoption?  Society shuns racists.  Should it also shun those that oppose homosexual activity on religious grounds?  Should the law facilitate this? 

…And, if the basis of your opposition is religious, then I suggest that you do what the US Constitution mandates – and that is to maintain a separation between the state and religion.

Would he remove religion as an influence for public policy?  What does this mean the 1st Amendment?  Faith motives many to help the poor.  Is that motivation unconstitutional?  

This is not just about gay marriage.  It’s also not about Harris’ homosexuality. This is about using government’s monopoly on power to advance a hostile secular agenda that dictates the contours of acceptable religious beliefs, suppressing those beliefs contrary to what our wise judges deem acceptable.  

Andy McCarthy said of Christie, “In any event, it becomes increasingly clear that as a potential presidential candidate, Chris Christie makes a good governor of New Jersey.”  

That may be an overstatement.  If this is how he approaches judicial nominees, Christie is not even qualified to be governor.  



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