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Rivals outline goals for top court
Originally appeared in the Star Ledger on 10/07/01
For the first time in recent memory, this year's gubernatorial election gives voters two candidates who will approach appointments to the state Supreme Court from widely different philosophical perspectives.
Judicial conservatives, who have long thought that overreaching liberals dominate the high court, are looking to Republican candidate Bret Schundler as the governor who would reverse that trend.
Their intellectual foes, who believe the court has historically addressed social ills no one else would consider, believe Democrat Jim McGreevey can bring back the national reputation the court once enjoyed.
The next governor will have a chance to appoint at least two justices during his first term. Justices James H. Coleman Jr. and Gary Stein will both reach 70, the mandatory retirement age for state judges, in 2003.
Should the next governor win a second four-year term, he will have a chance to replace Chief Justice Deborah Poritz, who must retire in October 2006, and also decide the fate of Justice Peter Verniero, who came to the court amid controversy. Verniero's initial seven-year term expires in 2006. Both Schundler and McGreevey have vowed not to reappoint him.
In separate and lengthy interviews with the two men, clear distinctions emerged between the two candidates.
SCHUNDLER'S CHOICE
When looking for possible candidates to serve on the state's high court, Schundler said, he prefers "strict constructionists," which is legal parlance for judges who believe they are bound by the literal words and original intent of the state and federal constitutions.
From his vantage point, Schundler said, he believes the justices currently on the court, although most were appointed by another Republican, have failed to demonstrate the sort of judicial restraint he would like to see.
Calling the justices "a small band of unelected people," Schundler said when courts take away the power of the people by striking down laws passed through the legislative process, they undermine respect for the law.
"It makes people angry at government," said Schundler.
He cited as example the court's 4-2 decision written by Poritz last year that prevents the Boy Scouts from banning gay scout leaders.
"They redefined the concept of a private organization," said Schundler. Such action by the court is astonishing to the public, he said. "Whether they agree with the goal of the court or not, the comment that the Boy Scouts are not a private organization strikes most people as surprising. . . . It's like the Clinton definition of is."
Schundler said he does not want justices crafting decisions based on their personal views, even if they are trying to advance a lofty goal.
In cases where the legal precedents and constitutional principles are vague, a strict constructionist would refuse to act, even if it led to an unjust result, whereas activist justices would be more likely to fill in the gap, Schundler said.
McGREEVEY'S WIDE NET
McGreevey said the state's high court was forced into an activist role by a negligent Legislature. He cited as example the series of so-called Mt. Laurel decisions, which mandated all New Jersey towns provide affordable housing.
"New Jersey within the past quarter of century has clearly had an activist court," said McGreevey. "But, it was due to the state's failure to act to remedy issues which the court long ago identified. I contend the court has tried, with mixed results, to remedy outstanding policy concerns."
Among its groundbreaking decisions are rulings on issues such as the right-to-die, surrogate motherhood, affordable housing, gay rights and school funding.
McGreevey was reluctant to talk about individual court decisions. But he did say he was concerned about the caliber of appointees, suggesting former Gov. Christie Whitman, a Republican, tended to appoint justices more for their political connections than the legal acumen.
In her seven years in office, Whitman filled six of the seven seats on the court. In the process, she broke new ground appointing the first African-American justice and three women, including Poritz, the first female chief justice.
But questions were raised about whether she truly searched for the best and the brightest. Those concerns were underscored when Verniero became the first nominee who was not endorsed by the New Jersey State Bar Association.
Whitman refused to consider the association's recommendations after it rejected Verniero and excluded the group from reviewing future nominees to the state's top court.
During her two terms, Whitman appointed three former Cabinet members, including two former attorneys general. Because they were so closely linked to the Whitman administration, they have been repeatedly forced to recuse themselves on some of the most important cases before the court.
McGreevey said he would cast a wide net when searching for justices to serve on the state's top court. And he said he would bring the bar association back into the process.
McGreevey said he would select candidates who have the kind of unquestionable background and experience that would return the court to the national prominence it enjoyed during the tenure of the late Chief Justice Robert N. Wilentz.
"The Wilentz court had a reputation for scholarship and a demonstrated sense of justice. The justices were among the most outstanding candidates from throughout the state, and from my limited vantage point, there has been a decline," McGreevey said.
He would like to reverse that trend, he said.
"I would select an individual based on intellectual ability and integrity . . . an individual with a reputation for excellence in the practice of law or as a jurist . . . as well as a sense of justice, including a demonstrated commitment to equal justice," said McGreevey.
Like McGreevey, Schundler said he would apply no litmus test when appointing justices.
In April, though, Schundler seemed to do so in responding to a Christian Coalition questionnaire. One multiple-choice question asked him if he would "support the nomination of pro-life justices to state Supreme Court." He was provided three possible responses: "support," "oppose" or "undecided." Schundler put a check mark by "support."
But during a recent interview, he clarified that check mark.
Schundler said his response simply meant that he would not disqualify a person from consideration simply because he or she was anti-abortion. In his administration in Jersey City, he said, he has always included people from both sides of the issue.
Schundler said rather than attempt to pack the court with judges who share his views on issues, he would use the legislative process to advance his agenda.
"I don't have to get into creating litmus tests when I have an opportunity to address amazing judicial activism through a referendum of the people," Schundler said.
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