Bench Memos

Governor Christie’s Judicial Missteps

I am not aware of any group more supportive of Governor Christie’s efforts to reform the New Jersey judiciary than the Judicial Crisis Network, of which I am chief counsel. Christie has consistently promised to break the liberal-activist stranglehold on the New Jersey courts by appointing judges who would “interpret laws and the Constitution, not legislate from the bench.” After a very promising start, Christie has disheartened conservatives by going back on his word with his recent nominations to the state supreme court.  

Exhibit A is Bruce Harris who Christie just nominated to New Jersey’s highest court from what appears to be a great desire to check some diversity boxes. There are two possible explanations, neither flattering to Governor Christie. The governor’s office was either astoundingly incompetent in vetting Harris, or Christie has quite resoundingly betrayed his campaign promises.

I don’t come to this conclusion lightly.  

From the outset many have voiced concerns that Harris lacks trial experience. 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 – or at least someone who has otherwise evidenced some background of having thought through a range of legal issues beyond their corporate clients’ immediate case.

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 e-mail 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. Harriss’ e-mail 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. 

Harris’s appeal to “the equal protection guarantees” in the New Jersey Constitution shows his approval of the New Jersey case of Lewis v. Harris, which required the state to create homosexual civil unions. In a move familiar to students of liberal judicial activism, the New Jersey Supreme Court decided that language in the Constitution guaranteeing life, liberty, property, and the pursuit of safety and happiness created an equal protection guarantee by implication. What is his originalist defense for this position? Is there any defense of this decision that does not constitute legislating from the bench? What other phrases might Harris read into the New Jersey constitution?  

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 . . .

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.

While the separationist rhetoric may sound harmless on the surface, in fact it is the basic operating logic of every liberal assault on religious liberty and has been the rallying cry of every effort to force people of faith out of the public square. While our Constitution prohibits establishing religion, it establishes neither non-religion nor a separationist state. Importing a policy of extreme secularism into constitutional law is hardly consistent with what anyone would consider a restrained jurisprudence.

This is not about Harris’s 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 that are contrary to what our wise judges deem acceptable. His methods of reasoning in the letter indicate a pattern of loose readings of the constitutional text to obtain a desired result, whether by creating a new right to equal protection out of whole cloth or by upending religious rights to shield the state from religion rather than vice versa.

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, Governor Christie has failed in a fundamental duty as governor.  


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