WILSON v CORZINE & KATZ: IS GOV. MENACING JUDICIAL INDEPENDENCE?

This post has three purposes concerning the Corzine-Katz emails. The first is to recognize that by all appearances the Judge has done his best governing the case. The second purpose is to recognize a unique confluence of events that, intentional or not, may open the door for an increasingly unpopular Governor to silently exert an inappropriate influence on the decision in Wilson v. Corzine & Katz. The third, and ultimate purpose, is to let Governor Corzine know we know what he knows and thus he should forget about it.


BACKGROUND

For Hamilton, Jefferson and Jay the ability of either the Executive or Legislative branch to exercise any power over judicial decision making is incompatible with a democratic republic: "`Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.'" Federalist Papers, No. 47.


The founding fathers sought to protect the judiciary from both Executive and Legislative encroachment by memorializing what is likened to lifetime tenure and permanent compensation in Article III, Section 1 of the Constitution. They reasoned;


“The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. ... it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” Federalist Papers, No.78. “NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN’S SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.” Federalist Papers, No. 79.


INFLUENCE


The issue of Executive influence takes two forms in Corzine – Katz. The first is somewhat subtle and indirect – The matter of another judicial pay increase is to be decided during the November lame duck session of the legislature. The second is direct and obvious – the Judge deciding Corzine- Katz does not have life tenure and is thus dependent on favorable near term action by the Governor to obtain it.


First, Corzine – Katz is being tried by a bench trial in the Mercer County Superior Court, Trenton, N.J. It also appears the Judge may live in the Mercer County. This is important because on September 25, 2007, ten days before the most recent hearing in Corzine-Katz, the article about judicial pay increases suddenly appears in the Trenton Times. Reporter Linda Stein writes that “Two months after getting their first pay raise in five years, Superior Court judges are seeking another increase, officials confirmed on Tuesday.” Stein goes on to write:


“Tammy Kendig, a spokeswoman for the state judiciary, said the administrative Office of the Courts will ask the legislature to consider another salary boost for the Judges in November after the election.” The next hearing date concerning the Corzine- Katz emails is scheduled for November 15, 2007.


Furthermore, since the first article, numerous news stories concerning a judicial pay raise are published. The following news report list is meant to be representative rather than inclusive. Moreover, it is not to suggest a press conspiracy. Rather, it is a statement that another pay increase is news and good news distribution includes frequency and reach.


“Shame on Judges for Salary Whining” - Asbury Park Press, 09/30/07

“Judges Don’t Need Another Pay Bump” – Courier Post, 09/30/07

“Chief Justice Says State Judges Deserve Another Raise” – Press of Atlantic City, 10/11/07

“Judges have No Case for Another Pay Raise” – Home News Tribune, 10/11/07

“N.J. Chief Justice Calls judges Underpaid” – Asbury Park Press, 10/12/07


Now, at first glance, the Governor’s power to determine whether or not the State’s judges get a pay raise may appear to make no difference in Corzine-Katz. Each and every New Jersey Superior Court Judge would face the same outside pressure as Judge Inness. Moreover, there is no plan to lower judicial pay. The purpose is more subtle. Objectively, both the timing and detail of these stories is to matter-of-factly catch the attention of all the Judges in general, and the attention of Judge Innes in particular. Peer pressure.


Accordingly, Judge Innes faces the carrot and the stick. He faces Governor Corzine’s informal power to push the legislature for or against a raise, as well as the Governor’s real power to approve or veto any lame duck November legislation that raises judicial pay.


Second, Judge Inness does not have life tenure (tenure during good behavior). The Judge was appointed for a seven year term in 2002. Governor Corzine was elected in 2006 and his term expires in 2010. Thus, Judge Inness must again be nominated by Governor Corzine and confirmed by the Senate in 2009 before his tenure can be permanent. The decision as to whether the Judge continues on the bench rests first and therefore solely, with whether Governor Corzine chooses to nominate him. If not, he will no longer be a judge.


It would therefore seem prudent to remember ;


The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. Federalist papers, No. 78.

BORN ON THE 4TH OF JULY - BLUE JERSEY, JAY LASSITER & THE NATTERING NABOBS OF NEGATIVITY

For the last five days, urban, suburban and rural Americans have been practicing the rituals associated with the founding of the nation. The Fourth of July is a time for parades, barbeques and fireworks. Time at the shore or lake. Stories honoring the troops in Iraq, movies about Patriot troops and militias battling British regulars and mercenaries. And, underling it all, sprinkled throughout the mix, a flow of deferential remarks about the Declaration of Independence and reverent speeches about the Constitution parse the Holiday conversations. Homage is paid to the blessings of being an American and the need for the vigilance necessary to perpetuate these good things.

In keeping with the spirit and basis for the holiday it is appropriate and necessary to take a moment to ask what are we celebrating? What are we fighting for? What do these documents mandate and what resultant way of life do we truly value?

Central to both the act of governing and the check and balances of the people on its government are the “nattering nabobs of negativity.” Since our inception, from the time of Publius and the Pennsylvania Farmer through the Pentagon Papers to the Abu Ghraib photos, reports of wireless wiretapping, and the U.S. Attorney scandal, the press, in all its forms and machinations, for all the criticism and its faults, has somehow continued to stir the pot and defend the right of the people to know. In doing so the press facilitates the right of the people to make informed judgments about their government and their right to be heard. Their right to say “enough.” So in that quite moment of reflection on this day cherish the irreverence of Thomas Nast, be thankful for papers like the New York Times, defend the right of the Don Imuses and Ann Coulters to make outrageous remarks, and be comforted by the taking-up of the torch by a new generation of nattering nabobs like BlueJersey’s Jay Lassiter.

SUPPLEMENTAL BACKGOUND

Our politicians talk endlessly about the “freedom of the people” and “the people’s exercise of liberty” in the pursuit of individual happiness. So far so good. But let’s take it one step further. It seems to go without saying that without the Bill of Rights there would be no Constitution and the Declaration of Independence would be nothing more than a failed articulation of human aspirations.

The Constitution recognizes three independent branches of Government: (1) the congress that makes the laws of the land, (2) the executive who implements the laws of Congress, and (3) judiciary that resolves disputes arising from the laws and their implementation. The Anti-federalists, however, saw the establishment of the horizontal machinery of Government as necessary but not sufficient because it did not provide vertical checks and balances. It did not formalize the vertical relationship between the first three branches of government and the fourth, the people. Thus the Bill of Rights was created as a mechanism to insure the government did not usurp the power of the people and suppress the legitimate role of the people in their own governance. It was created to require the government control itself.

The New Jersey Constitution, whether by incorporation or declaration, is a cut of the same cloth. It is a product of the same concerns.

BROKEN TRUST- CORZINE USING RABNER NOM. TO PLAY SENATE, GILL

The manner of nominating AG Rabner to be the next State Chief Justice allows the State's Executive Branch, i.e. Governor Corzine, to usurp the State Constitution's delegation of power and duty to the legislature, i.e the Senate's check and balance duty to advise as well as consent.

THE NEW JERSEY CONSITUTION REQUIRES ADVICE AND CONSENT

The New Jersey Constitution lists ten current instances that reguire a Governor to "nominate and appoint, with the advice and consent of the Senate... ." In terms of Justices and Judges the Constitution (Article 6, Section 6, Paragraph 1) demands "The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court, the Judges of the Superior Court, and the judges of the inferior courts with jurisdiction extending to more than one municipality;"

Nothing in the Constitution, however, states the procedure by which the Governor "nominates and appoints" and the Senate "advises and consents". But, both the plain text and continuous historical practice identify "Senatorial Courtesy" to be the appropriate procedure.

THE PLAIN TEXT MAKES ADVICE THE PRECONDITION TO NOMINATION

The precondition for Governor Corzine's nomination of AG Rabner is advice from the Senate about whether to nominate Rabner. In general, one gives advice by giving an opinion about a future action. What good is it to advise a person not to jump off a bridge after the jump? Or, more to the point, what good is it for the Senate to advise the Governor about Rabner's nomination once he has been nominated? Once Governor Corzine nominated Rabner to be the next Chief Justice the next step is to consent to or not consent to the nomination.

DEEPLY ROOTED PRINCIPLE VALIDATES THE PLAIN TEXT

Senatorial Courtesy is "closely related to the nominations process. ... At least seven [U.S.] Supreme Court nominations have failed to be confirmed partly on the basis of deference to the nominee's home-state senators." The practice "... was born in the very first [U.S.] Congress and continues today." "By the 1940's 'Senatorial Courtesy' was formally institutionalized through the development of the so-called 'blue slip procedure.' ... it is understood that failure to return the blue slip amounts to a de facto invocation of senatorial courtesy that will prevent committee hearings on the nominee and thereby block the nomination."

SENATORIAL COURTESY IN NJ

In New Jersey Senatorial Courtesy ensures that senators largely control the identifiction of candidates for the bench. Even if the Governor does not rely outright on the senators to identify candidates for particular appointments, the practice ensures that the Governor typically asks the approval of the Senators in question well in advance of making a formal nomination.

THE STATEGY TO CRIPPLE ADVICE AND CONSENT

Governor Corzine has quietly, but persistently, sought to eviserate the checks and balances of the State Constitution "advice" requirement. Until now the job of identifing potential judicial candidates has fallen largely to the State's Senators. One purpose is to assure at least some local control from the encroachment of a larger government body. Accordingly, the first step was Governor Corzine's largely unoticed "Order establishing a Judicial Advisory panel that will be charged with evaluating judicial candidates."

The second step is "a death by a thousand cuts as exempliied by the nomination of Robert A. Bianchi followed by the nomination of AG Rabner.

The third step is "sit back and watch." Corzine has sought to create Brand Rabner as a brand with broad popular appeal regardsless of his qualifications to be Chief Justice. Smart working class guy with best education (Princeton and Harvard as opposed to Rutgers and Yale), Crime fighter (Assistant U.S. Attorney), and apolitical (not connected and couldn't get a judicial appointment). Thus, the last minute nomination of Rabner without the advice of the Senate receives popular support. Add in that Senatorial Courtesy (like Executive Courtesy or the pocket veto) is easily misunderstood and thus an easy target for those who use demagoguery to oppose it. Then bait a sometimes controversial but pro-active Senator to enforce the "Advice Clause" - and BOOM- the wheels spin.

Some call it arcane - although its is as arcane as the Constitution is musty. Some call it blackmail without offering any hard facts that lead to the conclusion. Some simply jeer. And some, as with the sham appointment of the disastrous Judge Marianne Espinosa Murphy, seek to circumvent it.

SENATORIAL COURTESY PROTECTS THE CONSTITUTION

How then, does the Senate keep the Executive Branch from commandeering the Constitutional powers and duties expressly assigned by the Constitution to the Legislative Branch? Holding confirmation hearings only absolves the usurper and seeks to legitimize the usurpation. Holding confirmation proceedings that lead to a predetermined "no" vote are a waste of time and money. And, using a sham to fight a sham only further detracts from public confidence and faith in the government's integrity.


Senatorial courtesy solves these problems as the nomination is void and never acted upon. There are no Judiciary Committee hearings and thus no vote. If Governor Corzine wants his candidate appointed he must respect the Constitution by seeking the advice of the appropriate Senators prior to the nomination. At times when the Senate is in the hands of mostly corrupt or self-serving politicans Senatorial Courtesy gives the Constitution and the integrity of the Judiciary the utmost protetion. For like Sodom and Gomorrah only one person need speak up to save it.