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New Jersey Civil Rights Attorney Opposes Christie's Remarks About Judge Feinberg

If You Can't Say Something Nice... I'm a big boy now. I understand that politics is a dirty business no matter whom you happen to support. I get that our governor has his fans, fans who will excuse anything he does because, having drank the kool-aid, there's nothing he could do that isn't "necessary." This is an extreme view. I'm hoping that even those extremists might have a place in their view for reason. Take a deep breath and consider: Governor Christie has made some...

If You Can't Say Something Nice...

I'm a big boy now. I understand that politics is a dirty business no matter whom you happen to support. I get that our governor has his fans, fans who will excuse anything he does because, having drank the kool-aid, there's nothing he could do that isn't "necessary." This is an extreme view. I'm hoping that even those extremists might have a place in their view for reason. Take a deep breath and consider: Governor Christie has made some mistakes, since he's been in office. One of those was removing Judge John Wallace from the Supreme Court, in a move unprecedented in our state and which now opens the door to "tampering" with our judiciary. Removing Judge Wallace was one way of tampering. Recently, Governor Christie revealed yet another arrow in his quiver of "judicial modification through intimidation:" outright disrespect and conduct unbecoming an attorney in bashing a judge who applies the law.

Governor Christie was a licensed attorney when he practiced. That means that, whether he took it seriously or not, he swore an oath to abide our rules of professional conduct. This is an oath not lightly set aside, and certainly one that should never be set aside for the sake of political grandstanding. Some prices are simply too steep to pay to sacrifice one's personal honor as an attorney. Governor Christie did not violate his obligation to the rules of professional conduct when he removed Judge Wallace from the bench - though it was a dirty, disrespectful move that weakens our government for everyone - but I believe that he has in personally castigating and belittling a sitting judge of the State of New Jersey, Judge Linda Feinberg, for her decision in the matter of DePascale v. State.

Judge Feinberg ruled last Monday that the Pension and Healthcare Benefit Act, enacted in June, is unconstitutional as applied to judges.

Governor Christie didn't like the decision. Why he didn't like the decision is not germane to my point. That he didn't like the decision could have been made evident in a hundred ways, any of which, while "on the boarder" of good taste, would not have violated the code of conduct that governs licensed attorneys. That code of conduct speaks to many aspects of an attorney's conduct. Because we are the servants of the law, we must protect it and encourage respect for it by not acting in a way which denigrates it or the people who serve in it. Judges are certainly included in that latter group. Specifically, Rule of Professional Conduct (RPC) 8.4 says that it is professional misconduct for a lawyer to "...engage in conduct that is prejudicial to the administration of justice."

This RPC is a "catchall" portion of the RPCs which has been used to discipline attorneys who, for example, have publicly embarrassed themselves and their profession by publicly castigating a judge. By the way, judges have their own code of judicial conduct in addition to being governed by the RPCs; judges may not publicly castigate lawyers either. Even when judges are unhappy with what a lawyer does, they must be respectful and even-tempered just as lawyers must be respectful when addressing the court, whether they agree or disagree with what the court has said.

Governor Christie used words like "elitist" and "self-interested" to describe a decision which correctly applies the law the way a judge should; regardless of whether or not their decision would please those who hold purse strings or who make judicial appointments. The president of the State Bar Association said it best; "Governor Chris Christie's comments today are yet another attempt to intimidate the courts and unduly influence the judicial process." She also said that the Governor's continued attack on the judiciary "denigrates the separation of powers and the independence of the judiciary as a separate branch of government."

I get that Governor Christie has larger aspirations when his term as governor ends than returning to the private practice of law. I'm also just as certain that if he chooses to do so, the bar will almost certainly elect not to attempt discipline for this conduct. Yet I do believe that Governor Christie has misconducted himself, not as Governor who became a Governor after a career in some other profession, but as a former attorney. Despite the underserved and unfairly negative impression that the public now has about attorneys, some of which has no doubt been created by attorneys themselves, attorneys are a profession that polices itself rather aggressively, certainly more than physicians or other professionals with whom I'm acquainted.

I believe that Governor Christie will certainly shrug aside anyone criticizing him for his remark and I'm certain that privately, he has no remorse whatsoever for it. I'm sure he considers it an appropriate political gambit and appropriate lip service to the right wing and conservative elements that support him and his attempts to cast any judicial activity that he doesn't like as "activist." What's far darker and even more concerning about these comments, however, is the fact that they're clearly being used to intimidate a branch of government that is supposed to be independent and not "worried" about what the other two branches of government might do to them if they don't please those other two branches of government.

I hope that some of you who are reading this who are huge fans of the Governor will be able to put aside your temporary relationship with him - he won't be in office forever - and think about the long haul for the State of New Jersey and for government in America generally. Are you comfortable with the idea that a chief executive officer of a state or of a nation from either party should have the right to essentially castrate the third branch of government? Don't you feel better knowing that the several centuries-old plan laid down for this country is being followed by an independent judiciary?

Remember, the worm turns. I'm a progressive. I don't like a number of judges on the United States Supreme Court, but I would be even more uncomfortable if, because of the nature of their decisions, which are clearly pro-corporate and against individual and civil rights, were a democratic president to simply remove them for cause. I'm sure you can appreciate why. My happiness would be temporary. In due time, a republican president would come along and then effectively castrate the next democratically appointed Supreme Court for the same reason. After a while, the judiciary would simply cease to have relevance; we'd be left with two branches of government and sham for the third, the third which is supposed to balance the first two. The system of checks and balances are served well. Governor Christie is a reasonably intelligent man and should have known better. Anyone taking a deep breath and looking at the situation should, I hope, know better, as well.

Allowing this Governor to set the precedence with regard to an independent judiciary that he has will create huge potholes on the road to the journey to justice.

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