Guest Op-Ed: A Threat to Judicial Independence

Asm. Michael Patrick Carroll (R, LD25)
Asm. Michael Patrick Carroll (R, LD25)

Whenever I find myself on the same side of a controversial issue as Joe Cryan, I instinctively recoil. This says nothing about Chairman Cryan as a person; politics isn’t personal. But he’s almost always wrong on issues of importance, so when the two of us agree, it’s noteworthy.

Assemblyman Cryan and I cast two out of the three negative votes on a constitutional amendment now consigned to the people for their consideration. Same makes clear that the non-diminution clause of the Constitution, vis a vis judicial salaries, does not include deductions for pension benefits, health benefits, or other benefits.

As it happens, I believe this to be a fair statement of the existing law. Justice Patterson, in her persuasive dissent from the SCONJ ruling in Pascale v. State, made mincemeat of the majority opinion. Distilled down, the Framers understood that the meaning of the word “salary”, employed in the 1947 Constitution, was narrower than the word “compensation”, employed in the 1844 Constitution. Had the framers wished to continue the old language, they could have. Their departure from that language cannot be ignored or wished away, as the majority opinion contends. Had I been on the Court, I would have joined the dissent.

With one caveat: Justice LaVecchia’s opinion is dead-on when it comes to the underlying policy.

Such, alas, is the nature of a textualist approach to constitutional interpretation; those of us who adhere thereto believe we’re stuck with the Constitution we have, not the one we wish we had. It’s easier to be a judicial liberal; one simply makes it up as he goes along.

Confronted with a problematic judicial decision (coupled with more than a hint of dismissive arrogance; the word “magical” should not appear in any majority opinion, let alone to characterize the position of two coordinate branches of government), instead of calmly sitting back and addressing the issue soberly, the Legislature rushes in and passes an ill-considered amendment. Actually, “ill considered” flatters the proposal; hardly considered at all better describes the process, as we acted so quickly we lacked the time to even so much as hold a hearing. We moved in such haste that we found it necessary to waive numerous Assembly Rules.

And the reason for this unseemly haste is …?

If we delayed for a few months, and decided, after fair deliberation and time for thought, to pass precisely the same amendment, the cost to the pension systems would be about $2 million. By governmental standards, that’s not even chump change. Consider: it works out to about 20 cents per NJ resident.

But, given somewhat more time, we might have adopted a much better proposal, one which does not run the risk to judicial independence posed by this amendment.

Anyone who doubts that the judiciary could be subject to vicious partisan attacks need look no further than the confirmation hearings for Robert Bork or Clarence Thomas, or consider the embarrassingly partisan nature of the hearings recently held on two nominees to the SCONJ.

Assemblyman Cryan worried that we have “opened a door” to attacks on judicial independence. Here, he errs; we’ve opened a veritable cavern.

Consider, the following scenario: the Supreme Court issues a decision which enrages a legislative majority and the Governor. Unable or unwilling to pass a constitutional amendment correcting the decision, the Legislature adopts a proposal which increases judicial pension payments to 100% of the actuarial costs of same. At the same time, it mandates that judges pay the full cost of their health insurance benefits. Instead of the 10% reduction in take home pay the pension and benefits reforms will produce, this proposal reduces judicial take home by 70% – perhaps more.

It’s not hard to imagine that kind of legislative passion; isn’t that precisely what we just did, albeit on a smaller scale?

Consider an even more mundane possibility. The people elect a demagogue Governor – ala Huey Long – who controls a legislative majority dedicated to transforming the judiciary; they want only judges who agree with their policy predilections. But they face a difficulty: several hundred sitting judges who cannot be easily removed.

So, they take a page out of the playbook I’ve just set forth, and impose huge pension and benefits costs on sitting judges.

How many judges could afford to stay on the bench?

While I am certain that the advocates of this proposal do not mean to declare economic war on the judiciary, the language of the proposal opens the door for future Legislatures to do precisely that.

Some of my colleagues scoffed at this concern; I sincerely hope they’re right, that the occasion never arises for me to wag my finger and lament that “I told you so.” But we adopt constitutional provisions precisely because the political branches cannot always be trusted to act reasonably.

Addressing the Constitution, acting with such unseemly haste, without any Assembly hearings and with no public input, displays distemper, not deliberation. Put simply, the Legislature got its panties in a bunch and decided to show the Court who’s boss. That would be fine; we should do the same with respect to Abbott and Mt. Laurel, among (many) others, which involve REAL money and clear judicial usurpations of the Legislative role.

To the extent we saw fit to do so, we could have addressed the interplay of judicial salaries, benefits, and pensions in a manner not inconsistent with judicial independence. Instead, we rushed through a proposal which certainly conveys our pique with judicial overreach, but only at the price of creating a huge opportunity for future mischief. The situation called for prudence and deliberation, and we muffed it. Here’s to hoping we don’t come to regret it.

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Assemblyman Michael Patrick Carroll (R-25) is a veteran legislator from North Jersey.

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