In the last weeks of the campaign the state supreme court added a potentially volatile issue to the campaign mix — gay marriage. The court’s ruling last week in Lewis v. Harris, guaranteeing gay couples all the benefits of marriage, angered many New Jerseyans who saw it as an example of judicial overreach. Pundits who say that the court’s decision will nonetheless have little impact on the race are viewing the issue too narrowly. The ruling will give challenger Tom Kean Jr. an edge because it drives home to voters the problem of judicial activism. When it comes to gay rights, New Jerseyans are a tolerant lot, but they’re fed up with the activist courts that incumbent Bob Menendez supports.
The state supreme court’s decision in Lewis v. Harris is a classic example of judicial activism — that is, judges usurping the role of elected representatives by legislating from the bench and inventing new rights. In Lewis, the justices found a right to gay marriage or its equivalent that had heretofore lain undiscovered in the state constitution for more than 160 years. The court has graciously allowed the state legislature to determine the aesthetics of the new marriage-like institution, but the decision about whether to create such an institution was taken completely out of the hands of the people’s representatives.
The problem for Bob Menendez is not that he embraced this particular ruling and opposes an amendment — called for by Kean — that would define marriage as a heterosexual union. After all, a June poll indicated that nearly half of New Jersey voters support gay marriage. Instead, Menendez’s vulnerability lies in his obvious sympathy for judicial activism at a time of growing voter concern about activist judges.
During the 2006 election cycle alone, at least four states have seen efforts to rein in judges. This follows on the heels of the 2004 election, in which the issue of activist judges made the difference in several close Senate races. With another U.S. Supreme Court vacancy looming, there is every reason to believe this issue can make the difference in New Jersey in 2006.
New Jerseyans will have Lewis on their minds when they vote because they know that the dangers of judicial activism — in both state and federal courts — extend well past the institution of marriage. Several of the most hotly debated issues in the New Jersey Senate race, including homeland security, stem-cell research, and government ethics, are susceptible to judicial overreach. As a result, the legislative votes cast by New Jersey’s next senator may affect these issues less than his votes on judges.
The same holds true for other issues of concern to New Jerseyans, ranging from religious liberty to private-property rights to the protection of children from internet pornography. That’s why Jersey voters cannot ignore Bob Menendez’s troubling record on judges.
Menendez’s support for judicial activism goes well beyond his embrace of Lewis. It was evident when he pledged to “use support for abortion rights as a litmus test for Supreme Court nominees.” Both pro-choice and pro-life voters should be concerned with this statement, because it telegraphs Menendez’s preference for judges who behave like politicians, promising certain results instead of following where the law leads them. Similarly, Menendez’s hostility to the constitutional amendment supported by Kean indicates a preference for letting unelected judges, rather than the people of New Jersey, determine important social and moral issues.
Voters will also weigh the cold shoulder that Bob Menendez gave to West Caldwell resident Samuel Alito when he was nominated to the U.S. Supreme Court last year. New Jerseyans were proud of their hometown boy, but Menendez tried to deny Alito a vote in the Senate by supporting a filibuster. When that failed, Menendez voted to reject Alito’s nomination. Do New Jerseyans want a senator who puts partisan politics above both loyalty to the state and the principle of a fair up or down vote?
Menendez’s campaign commercials label Alito and John Roberts — both of whom Kean says he would have voted to confirm — as “anti-choice Supreme Court justices.” In fact, both men were nominated by the president and confirmed by the Senate because they are the antithesis of activist judges. Both have pledged to keep an open mind on abortion issues. But to senators like Menendez who are looking for judges who promise guaranteed outcomes, an open mind is a bad thing.
Injecting partisan politics into the confirmation process is nothing new for Bob Menendez. Though not yet in the Senate, Menendez denounced Honduran native Miguel Estrada — President Bush’s nominee to the nation’s second highest court — for not being “Hispanic enough.” Never mind that Estrada arrived here speaking little English. And never mind that a bilingual survey found that 80 percent of the Hispanic community thought it was important to confirm Estrada. Contrast that with Menendez’s accusation against Governor McGreevey of having slighted Hispanics when the governor dropped the nomination of Cuban-born Zulima Farber to the New Jersey supreme court. In Menendez’s view, a Republican Hispanic who believes in judicial restraint is not a real Hispanic.
After enduring two years of Senate obstruction, including multiple filibusters, Estrada withdrew from consideration as attacks from Menendez and other Democrats drove his wife towards an emotional breakdown. Just a few obstructionist senators made the difference in dooming Estrada. Similarly, the New Jersey Senate race could make the difference for pending and future judicial nominees. The outcome may well determine if nominees like Estrada and Alito are given a fair up or down vote, and whether justice is delayed because obstruction causes judicial vacancies to go unfilled. New Jersey voters will clearly help to shape the direction of the federal courts, whether towards greater activism or more restraint.
With so much on the line and another Supreme Court vacancy looming, the choice in the New Jersey Senate race is a crucial one. For those fed up with activist judges and the poisoning of the confirmation process, the choice on Election Day is an easy one — returning Bob Menendez to Washington is simply not an option.
– Curt Levey is general counsel of the Committee For Justice, which promotes constitutionalist judicial nominees and the rule of law.