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Friday, May 7, 2010

Judicial Independence from Politics: The New Jersey Supreme Court

This week New Jersey's new Governor Chris Christie announced he would not reappoint a sitting Supreme Court judge to a new term, and chose a successor pending State Senate approval.   The issue of the Supreme Court's composition has become the political football of the week.   Among the commentators on the issue have been judges on the Supreme Court.  
One judge, Deborah Poritz, is reported to have complained that judges should not be afraid for their jobs -- i.e., in fear of not being renominated -- based upon their decisions.
The Crime, Politics and Policy Blog response:  Judge Poritz is absolutely correct!
Judges should be above politics.  The judiciary is a necessary check on the legislative and executive branches of our government (whether we're talking federal or state).   Judges are very free to make rulings on the law without interference from the other branches.   What is at issue is a judge's future career prospects if he/she depends on the consent of the other branches of government to remain in that position; that is much different from being "free" to rule on the law.
A principled judge should make decisions on the law without any regard for the political consequences or the then-prevailing "will of the people."  Sometimes judges are the only protection between the "peasant wisdom" of the unwashed masses and gross violations of civil and human rights.   This standard means that judges should be willing to confront the other branches and take their principled stands, not only when such stands may be unpopular, but particularly when they may be unpopular.   That is the definition of courageous.   That would be the standard of behavior for a judge who puts principles over politics, and rights of the people over personal career ambition.  

What New Jersey needs is a judiciary whose judges are willing to take principled stands and defend the system of separation of powers and the rule of law.   Resisting political pressure is a necessary part of the task.   A judge who is worried about being reappointed is simply not putting the law first.

Two wrongs don't make a right.   Governor Christie may be entitled to choose his judges (as are our Presidents) but any choice of a judge based on the outcomes of cases yet to be decided, and not on principles and a respect for procedure and the law, is sure to be flawed.   Whether one agrees or disagrees with Christie's choice or rationale, the sitting members of the New Jersey judiciary should not be protesting if they are not reappointed.   The very concept of "appointment" means that judges should not be expecting to remain, as if if were some sort of entitlement or de facto lifetime-tenured position. 
Eric Dixon is a lawyer and member of the Bar in both New York and New Jersey.   He offers strategic analysis, legislative analysis and political consulting, in addition to conventional legal advice.  He can be reached at 917-696-2442 and at

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