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Whitman's goal in appointing these men and women was to ensure that legal abortion and other policies favored by social liberals would be protected by the judiciary against legislation that might be enacted by the people's elected representatives in Trenton. (Recall that these are the judges who tried to force the Boy Scouts to permit homosexuals to become scoutmasters.) To achieve her goal, Whitman needed to appoint justices who would refuse to be bound by the letter or even the spirit of the law, but would feel free to displace or rewrite laws they didn't like. In short, she needed individuals who would have no qualms about legislating from the bench. She found them. Yesterday they proved their mettle. The New Jersey statute in question could not have been clearer: A political party may not replace one candidate with another within 51 days of the election. Since Torricelli announced that he was getting out of the race for the U.S. Senate a mere 34 days before the voters were to decide his electoral fate, the letter of the law plainly forbade the Democrats to replace his name on the ballot with that of a different candidate (e.g., former Senator Frank Lautenberg). What about the spirit of the law? Consider what might have been appropriate had a candidate died or become disabled within the 51-day period. A judicial decision to permit that candidate's party to replace his name on the ballot with that of another candidate would have been reasonable because it would not have subverted the manifest purpose of the statute, namely, to prevent candidates who are losing as the race is drawing to a close from dropping out to make room for a fresh runner. Of course, Torricelli was very much alive (physically, that is) when he decided to give up. He wanted out — and his party wanted him out — because he was losing. In short, the Democrats asked the court for permission to pull the very maneuver that the law was designed to prevent. So it would be absurd to suppose that the justices, in granting the request, were merely sacrificing the letter of the law for the sake of its spirit. Spirit and letter were both tossed on the ash heap. To have applied the law as written would have fulfilled its purposes — its spirit — perfectly. But the justices didn't like the law or its consequences, so they nullified it. Consider the consequences of this naked act of judicial legislation. The law in question is dead. In the future, whenever a candidate in New Jersey is badly behind in the polls as the day of electoral judgment nears, his party will encourage him to withdraw from the race in favor of a more popular individual who has not been bloodied by months of campaign combat. The very thing the New Jersey legislature designed the law to prevent is from now on perfectly legal under the precedent established Wednesday by the state's supreme court. Of course, the justices — comically — fell all over themselves trying to deny doing what they undeniably did. But they gave the game away with their own rhetoric. "Rewriting the law? Heavens, no!" they insisted. They were simply giving the statute a "liberal construction" to ensure a genuine electoral contest. A "liberal construction?" That phrase is nothing but a euphemism for legislating from the bench in the cause of advancing the liberal social agenda. It has long since lost its capacity to fool people who are paying attention. In yesterday's ruling, the Whitman Republicans and Torricelli Democrats literally made up the law to help keep the United States Senate in the hands of the party of social liberalism. It was, in every sense, a "liberal construction." — Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University. His most recent book is The Clash of Orthodoxies. |
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of the seven New Jersey supreme-court justices responsible for Wednesday's
"interpretation" of the state's election laws to permit the
Democratic party to substitute a more credible candidate for the faltering
Robert Torricelli were put on the bench by liberal Republican former governor
Christine Todd Whitman. 
