New Jersey's 12th Legislative District

Senator Samuel Thompson

Senator Sam Thompson

Thompson Op-Ed: Activist Judges Need to Be Held Accountable

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The following op-ed by Senator Sam Thompson (R-12) on the need to hold activist judges accountable was published in the Star-Ledger:

Members of the New Jersey Bar Association and the judiciary have expressed concern over what they see as a threat to judicial independence posed by Gov. Chris Christie and others who criticize “activist” jurists, and the governor’s break with tradition when he declined to nominate two sitting Supreme Court justices for lifetime tenure.

Ralph Lamparello, president of the bar association, was quoted in the April 6 Star-Ledger: “There is a concerted effort among the executive and legislative branches of government to politicize the judicial branch and to subordinate its co-equal status.”

To the contrary — it is the activist judges who long ago eliminated the co-equal status of the executive, legislative and judicial branches. Activist judges have decreed the judiciary is superior to the executive and legislative branches, and they have done so time after time by issuing rulings based not upon what the constitution or statutes clearly state, but rather upon what they believe they should have said.

Justices are not appointed to legislate, only to interpret. However, activist judges do not recognize this limitation and don’t hesitate to rewrite the constitution and statutes to suit their fancy, hence, subordinating the legislative and executive branches to the supremacy of the judiciary.

For example, there was a recent court challenge to the executive and legislative branches’ decision to enact a statute requiring all state employees, including the judiciary, to make increased contributions to their pension and health care costs. Superior Court Judge Linda Feinberg ruled, and the state Supreme Court upheld, that this statute violated a section of the state constitution that states, “the salaries of Superior Court judges and Supreme Court justices shall not be diminished during their term of office.”

The constitutional language is clear and simple — salaries shall not be diminished. Yet the justices ruled deductions could not be increased because that would diminish the salary, though the salary remained unchanged.

One can only assume this ruling would mean that, if income taxes increased, the judiciary would be exempt because increased deductions would diminish their salary in the same way that increased pension or health care deductions would. Then it could even be argued that, if the price of groceries or gasoline increased, justices shouldn’t be required to pay higher prices because this would decrease their salaries.

Clearly, activist justices rewrote the constitution with their ruling.

Several years ago, U.S. Sen. Robert Torricelli withdrew his re-election candidacy after the statutory deadline for replacing a candidate on the ballot.

Activist judges did not rule as unconstitutional the existing law, which stated a candidate could be replaced on the ballot only if the resignation occurred prior to a fixed number of days before the general election. Their ruling simply stated that, in their view, the public interest was best served by allowing a replacement candidate onto the ballot.

Again, justices legislated from the bench, changing the law from what it was to what they thought it should be.

The bar association believes justices should never be held accountable for their decisions by anyone. It recommends that justices, once appointed, receive lifetime appointments unless “there are demeanor or competency issues.”

I strongly disagree. Everyone is accountable for his decisions and actions in life and I see no reasons justices should be different.

Feinberg said “Attacking judges facing tenure puts a chilling effect on all new judges hearing controversial cases,” and that many new judges hesitate to take cases that could endanger their appointments. If true, these justices should never have been appointed.

Judges whose rulings might be affected by public reaction to their decision don’t belong on the bench. I would say the same thing for any elected or public official whose actions aren’t based on what he thinks is right, but rather on what public reaction might be. They shouldn’t be in office.

If justices choose to legislate from the bench, they should be held accountable, just as legislators are. Governors are given one chance, after a judge has established a seven-year record on the bench, to hold members of the judiciary accountable for their actions. After that, they are there for life or until age 70.

To assume mistakes are never made in judicial appointments would be absurd. To say mistakes recognized based upon observed performance should not be rectified because of a 63-year-old tradition of reappointing Supreme Court justices is equally absurd.

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