Bench Memos

This Teaching Moment Brought to You by the Center for American Progress and Governor Chris Christie

Governor Chris Christie has been under serious attack lately, and the Center for American Progress is opening up another front: judges. Their observations on the topic are revealing, because they are evidence of the persistent confusion on the left about the proper role of a judge. 

CAP quotes my criticism of Christie as having “completely squandered the opportunity to appoint highly qualified judges who faithfully adhere to the text and original meaning of the law,” and is puzzled, because, from their perspective, “Christie is engaged in an unprecedented effort to augment the governor’s influence over the fiercely independent New Jersey Supreme Court.”

This observation is spot-on, if by “unprecedented effort to augment the governor’s influence” you mean “exercising the governor’s constitutionally-given power to appoint new justices rather than reflexively granting life tenure to incumbent judges,” and if by “fiercely independent” you mean “lawless and out of control.” 

To his credit, Governor Christie does seem to be interested in fixing one of the many problematic aspects of New Jersey law: the Abbott line of cases which for decades has resulted in courts micromanaging dozens of school districts and even usurping the state legislature’s plenary authority to make spending decisions. Disagreement with Abbott seems to be the litmus test he has for his judicial nominees.

But that approach is shortsighted and betrays a lack of understanding of the real problem.

Don’t get me wrong, I think the Abbott cases are a disaster. They have exploited state constitutional language establishing “a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years” to give judges authority over educational policy details such as whether the state also must offer preschool to children under age five and exactly how much money it must spend on education. These cases are only one example of the judicial imperialism that is the source of many of New Jersey’s most intractable financial woes.

But a governor (or president) should not choose judges based on how he thinks they would vote on one or two big cases. After all, a judge who was focused on the outcome of the case rather than applying the proper legal reasoning would be the very definition of activist. 

Judicial activism isn’t about the result in a case, it’s about the process.

A justice who voted to strike down the Abbott decisions because he or she felt as a matter of justice that school districts should be independently funded rather than redistributive would be activist. A justice who thought the state should get out of the education business altogether and so voted to strike down the Abbott cases would similarly be activist. 

But a justice who voted to strike down the cases because they involve the courts going beyond the constitutional language and usurping the constitutionally granted authority to other branches of the state government? That would be the same result, but for a principled legal reason rather than a political one. That is the proper role of the judge.

And unfortunately, in his approach to choosing judges, Governor Christie seems to be concerned more with identifying individuals who disagree with the Abbott decisions than with the harder job of finding nominees with evidence of a principled judicial philosophy.


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