Friday, October 04, 2002

The most appalling thing about the recent ruling of the New Jersey Supreme Court is how few people are appalled anymore when a court runs roughshod over the law. The New York Times was predictably satisfied with the ruling, in which the court interpreted the phrase, "not later than the 51st day before the election" in the New Jersey election statute to mean, "later than the 51st day before the election, if we feel like it", because "the greater need was to ensure 'full and fair ballot choice for the voters of New Jersey.'" (As Robert Hochmann pointed out in the Weekly Standard, the Times' notion of a "full and fair ballot choice" apparently includes a special slot on the ballot for a candidate to be selected by the New Jersey State Democratic Party leadership, irrespective of the state primary result; for that is what the ruling granted.) Joshua Micah Marshall termed it "a liberal, though not unreasonable, construction of the statute"--even as he dropped sarcastic comments about the travesty that was Bush v. Gore. (In other words, when judging judges, it all depends whose Bush is Gored.) The folks at The American Prospect's blog, Tapped, bought the court's supposed legal reasoning as well. The New Republic's blog conceded in passing that the ruling arguably "violates some cherished abstract principle like rule of law", but chose to concentrate instead on its practical harmlessness as a legal precedent. The most dignified response I've seen from a partisan Democrat is (perhaps unsurprisingly) that of Mark Kleiman, who noted with some discomfort that "the decision doesn't even pretend to interpret the statute", but otherwise accepted the good tidings philosophically, invoking Bush v. Gore and in effect saying, "this is the way we live now".

But even among those who disagree with the ruling, a shocking (but perhaps entirely predictable) number are treating the case not as a flagrant abuse of judicial authority, but rather as an incorrect, unwise, and possibly corrupt use of a legitimate judicial responsibility. Hochmann, for instance, feels compelled to argue that "the decision threatens to poison our electoral politics with last-minute manipulations", as if it would have been a completely legitimate overruling of the statute, but for the potentially unpleasant outcomes that render it dangerous. Eugene Volokh (a lawyer and a libertarian, to be sure, and hence entirely untrustworthy as a defender of democracy) even concedes that the court's "odd interpretation of the statute" was "not an utterly ridiculous one", and then constructs a long hypothetical meant to prove that the decision was nevertheless not necessarily a wise court's best option. All of this is a disturbing echo of the 2000 presidential election, in which Republicans burned by the Florida Supreme Court ran around talking about the sacredness of machine counts and appealing to the Supreme Court on completely implausible Constitutional grounds--happily jumping into the same jurisprudential mud that the Democrats had sullied themselves with--instead of defending the orderly functioning of the electoral process (as far as the House of Representatives, if necessary) unimpeded by the irresponsible meddling of power-mad judges.

Granted, there have been some voices (such as John Fund's, in the Wall Street Journal) willing to attack the judicialization of elections head-on. More typical, though, is a kind of cynical resignation, such as Robert Alt's in the National Review: "I know that it is too much to ask the court to actually apply the law, but....I expect judges to pretend that they are interpreting a statute, even if what they are really doing is rewriting it." (Alt also goes on to argue for the wisdom of the New Jersey statute's 51st-day deadline--again, as if the court would have been entitled to overturn an unwise one--and to suggest some potential legal justifications for a federal Supreme Court reversal.)

I take back everything I said about the elected branches of the US government being content to exercise their power vicariously, through their judicial selections. The situation is actually much worse: the day may not be far off when a president and Senate of the same party attempt to ram through a controversial judicial appointment, and the Supreme Court simply overrules their nomination, holding the vacancy open until such time as the executive and legislative branches are willing to do the Court's bidding and select a replacement deemed acceptable to it. Think about it--the outrage would most probably be brief, limited to whichever party deemed itself the "loser", and followed by the same muttering capitulation that we see today each time the courts take yet another step beyond the previous boundaries of their usurped powers. The long process of dismantling American democracy, and replacing it with pure judicial authoritarianism, would then, at last, be complete.

No comments: