FDU PublicMind - March 15, 2006 Release

Republican Comment by Tom Weisert

Across the board, there is a recognition that the judiciary -- the unelected, undemocratic branch of government designed as the least among equals -- has become too powerful in policymaking. People now perceive the courts as the most dangerous branch, rather than the least dangerous branch envisioned by Hamilton. Eye-popping are the numbers of moderates and conservatives who believe that legislating from the bench is a serious problem. Although courts are not supposed to legislate, the overwhelming majority of New Jerseyans believe that courts are doing just that. An especially disturbing result is that 80% of respondents perceive New Jersey judges as mere partisans, wielding raw power in favor of their political parties. That's not good news for New Jersey or the State Judiciary.

The overall results of the poll are clear, across party and ideology: Democrat, Independent, or Republican; Liberal, Moderate, or Conservative, the people of New Jersey see the courts overreaching too often. That shared belief takes its toll on our citizens' faith in the ability of the democratic process to serve their interests. That shared belief also does damage to the judiciary's legitimacy, the real coin of the courts' realm. "Legislating from the bench" cannibalizes the courts' own credibility with the public, diminishing respect for the rule of law. After all, if "law" is merely pretext for partisanship and politics, then the concept of "courts as sham" settles into the public consciousness. "Legislating from the bench" often is based on the judicial notion that a legislature must be saved from itself; ironically enough, the consequences of "legislating from the bench" for the legitimacy of judicial institutions and the rule of law may mean that legislatures should start saving the court from itself.

"Legislating from the bench" also creates the conditions for overheated judicial appointment processes. If judges are perceived as only instruments of political power (instead of interpreters of law), then the composition of courts through the confirmation process takes on added political gravity.

Surprising are the results showing that the public views legislating from the bench as a more serious problem for federal courts than for New Jersey courts. Perhaps our proximity to the Roberts and Alito hearings and the salience in the public mind of the federal context explain those unexpected outcomes. President Bush specifically stated that a selection criterion for nomination involved judges who would not "legislate from the bench." The hearings, of course, only then heightened the public's awareness of the issue of "legislating from the bench" in the federal judiciary.

Comment by Fairleigh Dickinson University's PublicMind Academic Associate Thomas Weisert (J.D., Seton Hall University School of Law). Tom, an attorney for a national law firm, clerked for a Federal Judge and a Justice of the New Jersey Supreme Court. He teaches Judicial Process at Fairleigh Dickinson University and Appellate Advocacy at Seton Hall University School of Law. Tom Weisert can be reached at 201.602.4468.