The following are excerpts of comments made by Senator Joseph Kyrillos during the reconfirmation hearing of New Jersey Supreme Court Justice Barry Albin in the Senate Judiciary Committee on June 22, 2009:
Today we take up one of the Senate’s most important constitutional responsibilities — the consideration of the Governor’s nomination of a sitting Justice for tenure.
Our courts are, by design, insulated from political pressure. Judicial independence is central to the guarantee of equal justice under law.
Our state constitution also gives the people’s elected representative the opportunity to examine the 7-year record of a Supreme Court Justice who has been nominated for tenure.
That’s purpose of these hearings.
The Senate’s advice-and-consent inquiry is focused. We are not here to determine whether we favor this or that outcome in a particular case. We are here to determine whether a member of the Court has carried out the judicial role faithfully within the constitutional limits of the judicial branch.
Some basic questions should guide our scrutiny of the record of any Justice, including Justice Albin. We need to ask whether the justice has exhibited the intellect, legal skills and temperament we should expect of a member of the state’s highest Court; whether he has conducted himself with integrity and impartiality; and if he has adhered to the constitutional limits of the judicial role.
On the first two scores, Justice Albin’s record is admirable. He is a skilled jurist, he has served with integrity and independence.
On the third score – fidelity to the law as it is written – I have serious doubts about Justice Albin’s record.
Our courts serve a critical but limited role. Judges are servants of the law, not the other way around. The duty of a judge is to interpret the law, not rewrite it. In practice, that means you look to the text and, if necessary, the history of a given constitutional provision or statute, and you give effect the meaning the drafters intended.
Chief Justice John Roberts put it nicely when he said judges are like umpires. Umpires don’t make the rules; they apply them. Nobody ever went to a ballpark to see the umpire.
Too often, our state Supreme Court has stepped into the batter’s box. It has tried its hand at law-making. And the results of that judicial excess continue to plague the state of New Jersey.
Several cases are well known. The Court used a clause of the Constitution that requires a “thorough and efficient” public school system to impose a thoroughly inefficient school funding formula. And it imposed a low-income housing mandate that has bankrupted local communities – to name only two examples.
Now some may be quick to point out that this nominee, Justice Albin, was not on the Court when decisions like the Abbott cases and Mount Laurel were handed down. And that’s true. But adherence to precedent is not a sufficient explanation for following and reaffirming deeply flawed precedents. Unlike judges on an intermediate court of appeal, members of the Supreme Court have the constitutional power and responsibility to overrule precedents that are both wrong in legal principle and damaging in practical effect.
In the end, legislating from the bench is a self-defeating enterprise — because it erodes respect for the Court itself. For the sake of this state, of its taxpayers, and for the sake of the court’s own reputation, it is time for the New Jersey Supreme Court to return to a respected but limited role in our constitutional order.
I want to be clear that I do not think Justice Albin is an ideologue. He has proven to be one of the more sensible members of this court. Justice Albin is a jurist of good judgment and intellect and he has instincts toward restraint — but my disappointment is that he has NOT used those strengths to lead this Court out of the thicket of political decisions. Out of housing policy, out of education funding formulas, where it doesn’t belong. My hope, should you be tenured, is that you will take a leading role in returning the Court to its limited but respected role in our state government.
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October 9, 2009
