Thursday, November 08, 2012

No Long Faces

Back in the Spring, many of us looked at the GOP Presidential field, and sighed. The polls indicated that the party folks thought the same way. One week, Cain was up. After he self destructed, Gingrich rode high. Throughout it all, the candidates all behaved like a bunch of children (except Ron Paul).
An especially perceptive cartoon showed Romney as a suitor of a Republican elephant, saying, "you don’t seem interested; is there someone else" and the elephant thinking, "there must be." But, ultimately, there wasn’t.
In short, we had a weak field, which produced a relatively uninspiring candidate, about whom very few were particularly enthusiastic. He was our guy; we supported him over the catastrophic alternative. But how many people voted FOR Romney as opposed to against Obama?
Against such a weak opponent, Obama got about 502 votes of every 1000 cast.
THIS is cause for gnashing of teeth and rending of shirts?  This "landslide" portends the death of the GOP?
Admittedly, the prospect for harm from a second Obama administration is great. His policies virtually ensure national bankruptcy, unless he pulls a Clinton and utterly reverses course, highly unlikely since he, unlike Clinton, is a True Believer in the Hard Left.
And the possibility to utterly destroy American constitutional law with nutty appointments is a grave prospect indeed.

But while a GOP Congress can continue to obstruct some of his worst new proposals, we should NOT delay them. If they’re going to happen, better than they happen NOW and that all the harm they cause be laid squarely at the feet of the Democrats. In short, if we can’t stop the harm, give liberals what they want, and make sure that they take the blame.
Think on it: leftist affordable housing policies caused the great collapse, but who got the blame? Bush and the GOP. The last thing the GOP should be doing is playing responsible adult and acting as the tax collector for socialist policies. We can’t stop Obamacare now. Fine: make sure that it’s implemented, exactly as written. If it "works" and people like it, we fold up our tents and go home. But INSIST that the Dems pay for every last nickel of it without increasing the deficit or raising any additional taxes. Make the left OWN its policies and answer for the consequences. We’ll see how much the people like socialism when it hits them in their wallets.
Just so, the fiscal cliff. The spending cuts are fine; why not let them happen? If it means we have to bring troops home from Germany, Japan, Korea, etc., so much the better. And if it means no more farm subsidies? Oh, well.
On taxes, give the president a clean, one sentence bill: all tax cuts are hereby made permanent. Not a single Republicans in the House runs the risk of losing an election based upon charges of "obstruction" – their constituents did not send them to DC to be accomplices to socialism – and can go back to the district having voted to make the tax cuts permanent for everyone. Sure, the Times and the media will moan; let ‘em. If Obama is so obsessed with envy that he’ll hold the whole country hostage, that’s his problem. This should be non-negotiable; tax increases now are beyond stupid, and tax increases based upon envy, which have just about no impact on the deficit, are dumber still.
But long term, the prospects don’t look bad for the GOP; Obama got 10 million FEWER votes this time than last. The coalition he built has less to do with demographics – minorities, the young, single women – than with economics. In each case, members of the groups he won are disproportionately likely to be receiving taxpayer-funded subsidies.
So, for example, the GOP did not lose "women"; it lost women who are looking to the taxpayers to act as their babydaddies. 2/3 of single women voted for Obama; Romney got 53% of married women’s votes. Republicans don’t have a women problem; Democrats have a marriage problem.
Ditto Hispanics; Obama won 82% of the Hispanic vote from those earning under $50K, he won less than 60% for those earning more than that. When Hispanics no longer rely upon other people’s money, they become more Republican,.
Indeed, Romney won easily among all voters making more than $50K, but got swamped, 60-38 among those making less.
That said, Obama won eight of the ten wealthiest counties in the country (the exceptions being Morris and Hunterdon), many of which surround DC. In short, Obama cobbled together a coalition composed almost exclusively of wealthy socialists and their clients. It proved sufficient to (barely) win.
But young people age, grow wiser, and become Republicans. As Hispanics – a very young population – age and prosper, they become Republicans. When women marry, they become Republicans. So, why the long faces? (On the down side, socialists always do better in crummy economies, and socialism produces crummy economies, so the left may be sowing the seeds for both collapse and its own electoral success, a sobering thought.)
The GOP House should stand firm, insisting on deficit reduction and adamantly opposing ANY tax increases. Not one additional dime in rate increases. To the extent we can’t stop socialism, we should make the socialists own those policies and take full responsibility for the costs.
To paraphrase Ed Koch, the people voted for four more years of socialism; now, the people must suffer. The GOP should adamantly refuse to compound the sin, but should be absolutely certain that the people get precisely that for which they voted. And that they know precisely whom to blame (or credit) for the results.
Maybe, after four more years of economic catastrophe – blaming Bush should get pretty old by then – a Ryan-Rubio (you see how much we Republicans hate Hispanics?) pro-freedom ticket can bring this country back from the abyss.

Wednesday, August 01, 2012

A Threat to Judicial Independence

     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.

Tuesday, July 10, 2012

Senator Weinberg's Question

Some time ago, SenatorWeinberg, patting herself on the back for keeping Phil Kwon and Bruce Harris off the SCONJ, wrote:

"We turned down the two inappropriate Supreme Court nominees put forth by the Governor. What do you think would have happened to the Affordable Housing (COAH) case if either of them had been on the court?"

Perhaps unsurprisingly, this represents a fundamental misunderstanding of what judges do. But, then again, leftists don’t see courts as adjudicative bodies; they see them as instruments to impose policy, as politicians in black robes. Give her credit: Senator Weinberg couldn’t have been more forthright, that she wants politicians – well, her kind of politicians – on the Court:

"The balance on the Supreme Court should be important to all of us. With issues like school funding, women's health, affordable housing, marriage equality, and tax policy, that is particularly important to our progressive community."

One doesn’t even need to read between the lines: "progressive" judges will arrive at the "correct" result, whereas conservatives might permit pesky details, like the text and history of the document to influence their decisions.

Unfortunately, vis a vis progressives, the good Senator is correct: they DON’T permit trivialities like the appropriate role of a judge to stand between them and effecting "desirable" social policy. Consider Obamacare. Much discussion occurred about whether one of the so-called conservative judges might vote to uphold it, but there was never even so much as the slightest doubt that the four political liberals would march in lockstep. And they did. There is nothing so predictable as Justice Breyer’s vote: find out what progressive ideology considers a good result, and that’s the way he’ll come out.

Just so, Senator Weinberg clearly wants justices who will arrive at the "right" result on cases when she believes passionately in the policy.

But, query: do we REALLY want judges involved overmuch in "tax policy" or "women’s health"? Should judges be making "affordable housing" policy or taking it upon themselves to redefine marriage? Once one concedes that judges possess power in such areas, one surrenders the right to bellyache if said judges arrive at conclusions to which one objects. Endowing judges with the authority to impose their whim upon the citizenry presents the severe risk that they will arrive at a policy which diverges from one’s own.

Which, perhaps, explains Senator Weinberg’s deep concern about the possibility that someone who disagrees with her politically will be confirmed. Perhaps she fails to understand that political conservatives view the judicial role very differently from progressives. An example, from her own writing, above.

The decisions in Mt Laurel and its progeny are problematic in the extreme. Our NJ Constitution provides:

"The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature."

From this pithy language, the Court discovered (a) that to be valid, a zoning Ordinance must be consistent with the public welfare and (b) it falls to the judiciary to determine what policy advances the public welfare.

Note the language of the Constitution, entrusting zoning matters to the Legislature. The Court never found that any zoning ordinance violated the Municipal Land Use Law. Instead, it engrafted onto that language an affirmative duty to provide for low income housing, and arrogated to itself the right to determine the precise scope of a municipality’s obligation. In short, Mt. Laurel represented a huge power grab, in which the judiciary simply asserted that it, and not the Legislature, enjoyed the right to make policy calls in this area.

Clearly, Senator Weinberg LIKES that decision; she apparently doesn’t mind an assault on legislative prerogative in the service of arriving at "progressive" results. The "how" doesn’t matter so much as the policy itself.

But the question Senator Weinberg posed is different: how would a judge who actually pays attention to the Constitution, and cares about the judicial role, have voted on Governor Christie’s attempt to inter COAH? Framed differently, faced with a gubernatorial assault on legislative prerogative, rather than one from the judiciary, Senator Weinberg suddenly advocates for the dignity and power of the Legislature. It’s hard to escape the conclusion that she simply doesn’t care about process, provided she likes the result.

Let’s get personal: ridding the state of COAH and the entire edifice of "affordable housing" guarantees strikes this legislator as wonderful policy. And, as above, the entire Mt. Laurel doctrine rests upon absurdly shaky constitutional footing. But if the LEGISLATURE adopts a policy, included in a statute, which establishes an agency or imposes a policy upon municipalities, that presents a very different question. While the judiciary lacks the legitimate authority to impose its whim upon the populace, that’s why they pay legislators the big bucks.

Although it apparently comes as a surprise to progressives, political conservatives, on the judiciary, are quite capable of doing something progressives apparently find incomprehensible: arriving at a decision with which they profoundly, personally, disagree, because the constitution compels it. (John Roberts, call your office)

So, in answer to Senator Weinberg’s (rhetorical) question, had either of the two nominees to the SCONJ – to the extent that either was a conservative – been confirmed and heard the COAH case, they would have arrived at the result the statute and the constitution compelled, not the policy determination they might have personally preferred. That’s how judges are supposed to act.