Cardinale: My Reservations About Justice’s Reappointment

June 26, 2009

Contact: Andy Pratt / (609) 292-5199
Senator Gerald Cardinale (R-39)

The following is an editorial by Senator Gerald Cardinale of New Jersey’s 39th legislative district that was published in The Record on Friday, June 26, 2009.

Last Monday, for the first time in years, the Judiciary Committee of the state Senate spent a day rigorously and thoughtfully questioning a nominee about his qualifications to be a justice on our state Supreme Court.

This historic review came about because Republican members insisted that the committee stop rubber-stamping the governor’s nominations and meet its constitutionally mandated responsibility to thoroughly evaluate nominees to the state’s most powerful court.

Thanks to this fair and thorough review, the lawmakers and public were given an unprecedented opportunity to evaluate the career history, legal thinking and temperament of Justice Barry Albin.

Albin has already served seven years on the Supreme Court. He has and will play a crucial role in shaping the future of our state, including its neighborhoods and schools. Yet when he was first nominated, members of the Judiciary Committee didn’t ask him a single question.

As per state law, he came before us on Monday for consideration for a reappointment that will allow him to remain a justice until retirement.

In the end, his responses at this hearing led four Republicans to vote against his reappointment.

I couldn’t in good conscience vote for the nominee when he wouldn’t answer questions I thought were vital to knowing whether he was the best choice for the people of New Jersey.

On the two biggest issues we face as a state – where we live and how we pay for our kids’ education – Albin did not share details about the philosophy that would guide his opinions.

Nor would he answer basic questions about what the court’s role should be in setting public policy for such issues as school funding and land use.

I wish he had.

Testimony at this hearing showed Albin is a hard-working, conscientious justice with a love and deep understanding of the law.

Qualified

His supporters say those qualities should have been enough to secure his tenured appointment to the Supreme Court.

I don’t agree. After decades of court decisions that have had huge negative consequences for New Jersey, most of my constituents want me to approve only those justices who will not legislate from the bench.

Too many times, the New Jersey Supreme Court has used creative interpretations of the state Constitution to bypass written law or to create new law without a vote by the Legislature.

These deeply flawed rulings, some upheld or joined by Albin himself, have reverberated through the lives of millions of people. For too many, the effects have been profoundly negative on their schools, levels of taxation and community life.

Some of our colleagues argued that conducting a thorough review of Albin would interject politics into the process and threaten the independence of the judiciary.

We bent over backward to ensure that the review was based on merit and not on the desire to settle grudges or score political points.

Still, we argue that the justices have inserted themselves into the political realm by acting like legislators instead of just applying the law.

Many top judges seem to want it both ways. They refuse to answer questions in confirmation hearings about their opinions on issues because they claim their rulings will be based only on the law. Then they issue rulings clearly based not on what the Legislature put into the legal code, but on their opinions of what the outcome of cases and the law itself should be.

Many citizens believe that justices see no reason to adhere to the laws that the Legislature passes if these laws interfere with judges’ visions for the state and its legal system. The unintended, but harmful, consequences of these rulings have weakened democracy. Elected representatives should be making laws, not appointed judges.

Abbott rules

The long-running Abbott decision led to 60 percent of state education funding going to 31 districts. The justices’ attempt to gain fairness for students in a few districts led to increases in property taxes and shortages of resources for poor students in other communities, as well as crippling new debt for school construction. Worst of all, there was no accountability for whether the money was spent wisely to improve education, and too much was wasted.

A vastly overreaching ruling in the Mount Laurel case has led to bad affordable housing laws and unworkable rules that are preventing vital development during this terrible recession.

The voters who have to live under these regulations — and pay the immense, seemingly unending bills to implement them — have the right to oversight when justices are reappointed.

As their elected representatives, we were obligated to conduct a review that reflected their needs and concerns.

I am proud that we did so.