Well, not quite. But Governor Christie’s press office would like you to know that Governor Christie’s latest supreme court nominee, Bruce Harris, would be President Obama’s kind of judge. The claim was made in a truly bizarre advocacy memo released by Governor Christie’s office in anticipation of the New Jersey Senate Judiciary Committee’s confirmation hearings, which begin today. News reports suggest that the nomination will be rejected, so the memo appears to be a desperate, last minute attempt to persuade Democratic senators that they should support Harris because President Obama would support him.
The memo quotes from one of the interviews in which President Obama articulated his “empathy” standard, including President Obama’s assertion that “I think it’s also important that this is somebody who has common sense and somebody who has a sense of how American society works and how the American people live.” One sentence later, President Obama cites the Lilly Ledbetter case and states that “you have to be able to stand in somebody else’s shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.” Later in the same interview, President Obama explains that such characteristics are important because in the hard cases, that “5 percent” where “the language is ambiguous, where the constitutional precedent is not clear,” a judge must rely on things like background and experience.
A growing number of conservatives have been weighing in to oppose Harris’s nomination precisely because they fear his judicial philosophy is more consistent with President Obama’s. The Christie Administration has apparently decided that there is more profit in borrowing from President Obama’s ridiculous standard for judicial nominations than in providing conservatives with evidence that Harris would faithfully interpret the Constitution. Perhaps that is because there is no such evidence. As the excellent Star-Ledger columnist Paul Mulshine explained:
Once safely on the court, Harris is likely to shed any pretense of conservatism and revert to stereotype. . . . Harris is a Morris County Republican. These guys are born with bleeding hearts. The typical Morris Republican would qualify as a liberal Democrat in any of the more rural counties where Republican voters are concentrated in this state.
Where I disagree with Mulshine is in his conclusion that it would be political miscalculation for Senate Democrats to reject Harris, because they would ultimately be doing Christie a favor by freeing him from an awful judicial appointment. The New Jersey Supreme Court is one of the most liberal high courts in the country. As Steven Malanga detailed in an excellent City Journal piece:
[T]he New Jersey Supreme Court has profoundly transformed the Garden State by seizing control of school funding, hijacking zoning powers from towns and cities to increase subsidized housing, and nullifying taxpayer protections in the state constitution. Its undemocratic actions have blown apart the state’s finances and led to ill-conceived and ineffective policies.
To his credit, candidate Christie repeatedly promised to change the direction of the supreme court by appointing judges who would “interpret laws and the Constitution, not legislate from the bench.” Harris’s nomination cast some doubt on Christie’s interest in fulfilling those promises. This public document laying out the “Obama case” for confirmation can be taken as a full public rejection of them.