CQ Roll Call reports that Senator Frank Lautenberg (D, NJ Sup Ct) will not seek re-election. Since Sen. Lautenberg is the perfect poster geezer of liberal construing, we should take a moment to recall the underhanded method by which he became Senator. (Before I’m accused of ageism, let me add that as a geezer myself I regard that term as purely descriptive, not at all an insult. What would be insulting is calling the 89 year old Lautenberg a poster boy.)
And what better way to remind you that the quintessentially liberal Lautenberg’s skids into the Senate were greased by a quintessential liberal court opinion than to quote a long excerpt from something I wrote just before his anointment by the New Jersey Supreme Court:
13 October 2004
The issue of judicial appointments is almost certain to come up in tonight’s presidential debate, with President Bush criticizing the Democrats for blocking his appointment of judges who will “interpret, not make” laws and Sen. Kerry complaining about nominees who are “out of the mainstream” etc. etc.
In addition, a recent article by election law expert Rick Hasen (via Mickey Kaus) suggests that judges may be called on to play a crucial role in this election, just as they did in 2000. Specifically, Hasen is referring to how the Supreme Court may treat a challenge to a provision on the ballot in Colorado that would, if it passes, divide the state’s electoral votes proportionally rather than giving all to the winner, and further would apply that proportional split to the results of this year’s election.
Hasen dismisses, perhaps too quickly, objections that the provision is unfairly retroactive and instead focuses — shades of Bush v. Gore! — on the conflict between the requirement of Article Two, Section One, Clause Two of the U.S. Constitution that“[e]ach State shall appoint [electors], in such Manner as the Legislature thereof may direct” (Emphasis added), and the fact that, if it passes, Colorado’s new scheme would have been enacted by the voters, not the legislature.
I find it very curious, by the way, and perhaps revealing, that Prof. Hasen’s rendition of this Article II requirement is that it “allows each state legislature to set the rules under which electors are chosen and allocated.” Allows? This is rather like saying that Article Iallows Congress to exercise legislative powers, and allows it to consist of a Senate and House. Despite his innovative rendition of what Article II requires, Prof. Hasen does put the possible conflict over Colorado’s elector-sharing provision in the proper context:
When the U.S. Supreme Court was considering the 2000 Florida controversy, supporters of Bush argued that the Florida Supreme Court, in extending the deadline for Al Gore to contest the election and later by ordering a recount, had violated Article II. The argument was that the court had usurped the legislature’s power.
In its first decision in the Florida controversy, the U.S. Supreme Court suggested that such an argument might be plausible, though it failed to decide the issue conclusively. In the second decision, Bush vs. Gore, three justices – Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist – embraced the view that the Florida Supreme Court’s actions violated Article II. Dissenting justices argued that the Florida court decision was simply an interpretation of the legislature’s existing rules.
Ah, there’s the rub that frequently rubs conservatives the wrong way: “simply an interpretation.” The Florida Supreme Court “interpreted” the statutory requirement that election returns be reported within seven days to mean … not necessarily within seven days. Ditto with the amount of time required for contesting the results and several other matters.
As I have commented before (here, here, and here), judicially rewriting a statute through the magic of an unrestrained power of interpretation is called “liberally construing” or “reading loosely.” Liberal judges are quite adept, not surprisingly, at construing liberally. Nowhere was this talent on display more clearly than when the Supreme Court of New Jersey (see the first of those “here” links above) decided in the infamous Lautenberg-for-Toricelli candidate swap, much in the manner of the Florida Supreme Court, that “51 days” did not mean 51 days. New Jersey law, you will recall, allowed (yes, here “allowed” is right) for a candidate to be replaced on ballot up to 51 days before an election. Since The Torch went down in flames closer to the election than 51 days this appeared to be a problem. But to the New Jersey Supremes it was a piece of cake. All they had to do was “construe” the statute liberally. This was easy, since after all the statute didn’t say “absolutely, positively.” You think I jest, but listen to New Jersey Chief Justice Deborah Poritz, quoted in my first “here” link above:
Chief Justice Deborah Poritz observed that the 51-day rule for substituting a candidate appeared to be arbitrary. She added that other states had deadlines ranging from 30 days to a handful, noting that New York state’s statute says that failure to meet the deadline is a “fatal defect.”
“Our statute says nothing of the kind,” she said.
When conservatives say they want judges who will interpret the law, not make it, they don’t say enough, for the real problem is that liberal judges are loathe to recognize textual or other limits on their power to interpret. If “seven days” doesn’t mean seven days; if “51 days” doesn’t mean 51 days; if selecting presidential electors “in such Manner as the Legislature … may direct” doesn’t mean that the legislature — not the state supreme court, not the governor, not the people through plebicite — must devise the electoral scheme, then there would seem to be few limits on the power of “interpretation” through “liberally construing” words that say one thing to mean something entirely different.
Writing in the New York Times (cited in my second “here” above), legal reporter Linda Greenhouse called the 51 day limit a “formal deadline” — as opposed to what, one wonders? An informal one? Are formal deadlines less binding than informal ones? Similarly, New Jersey Democrats called the statutory requirement merely a “technical guideline.”
If unaccountable judges with lifetime tenure are allowed to exercise unrestrained, unconstrained powers to interpret, constitutions and statutes do indeed become nothing more than the “parchment barriers” Madison warned of, and the people get royally construed.
Incidentally (or maybe not), the CQ Roll Call article I linked to begin this post noted that “Lautenberg repeatedly taunted [Newark Mayor Cory ]Booker,” who had the temerity to consider challenging Lautenberg in a primary, recently suggesting that “the Newark mayor deserved a ‘spanking’ for being ‘disrespectful.’”
I would say, as I’ve said before, that we should be hearing soon from “all-around expert on everything (just ask him), David Gergen, former advisor to everyone,” who on the basis of essentially no credible evidence once accused John McCain of calling Barack Obama “uppity.”
Gergen, with his uniquely high-powered ability to penetrate the surface of things, looked at the McCain ad “seeking to portray what it says is Obama’s smugness and false regal perception with a new comparison: to Moses” and discovered, hidden in code that only Southerners can really understand, racism:
[On ABC News This Week] longtime Washington hand David Gergen took umbrage with John McCain’s recent attack ads, charging that the Senator was using coded messaging to paint Barack Obama as “outside the mainstream” and “uppity.”
We should be hearing from Gergen, but we no doubt won’t, for he accuses only Republicans of speaking in racist code words.