Construing Liberal Construing, Or: Construe You

I’m still fascinated by the ongoing discussion of “construing liberally,” also known as “reading loosely” (WaPo editorial: “The Supreme Court of New Jersey read quite loosely state election law….”).

Linda Greenhouse, the New York Times Supreme Court reporter who is usually quite balanced and reliable (and with whom I once served on a panel so long ago that she will have forgotten the panel, much less me), writes today of the NJ Supremes’ decision to allow the substitution of Lautenberg’s name on the ballot “after the formal deadline for a ballot substitution had expired.” Excuse me, Linda, formal deadline? Do New Jersey statutes have degrees of deadlines? If so, I missed that. In any event, are formal deadlines less binding than informal ones? Did the august justices sit around and say, “Oh, the 51 day cutoff is not a real deadline, it’s only a formal deadline”?

Greenhouse also quoted an “expert,” Prof. Richard Hasen of the Loyola College of Law in Los Angeles, who said the injury to the Republicans had not been established. “The worst that can happen is that their guy has to run in a competitive election,” he said. That’s a rather partisan way of putting it, which might be explained by something left unmentioned in Greenhouse’s story that was mentioned in today’s Associated Press story: that Hasen has been a consultant to the Gore campaign.

Similaly, the WaPo also turned to an expert who is well-known as a consultant to Democrats, Pam Karlan of Stanford (She’s currently advising Gov. Mark Warner of Virginia on a gerrymander case), and she also minimized the seriousness of the injury as a way to distinguish New Jersey from Florida. “Here, there’s no constitutional train wreck coming,” she said.

Now, if I were the polemical type I would say, “Well, yes, but it’s equally true that ‘the worst that can happen’ is that the Democrats get stuck with the name on the ballot that they, in their wisdom, chose because the Constitution assigns the rule (not recommendation)-making power to the legislature, and the legislature adopted a rule making it too late to substitute a newer, more attractive name. If they now don’t like their choice, they could always write in Lautenberg’s name.” But I would say that only if I were being polemical.

If I were being partisan, I would say that the Democrats have handed Forrester a solid gold campaign issue: the politics of judicial selection. It is the perfect combination of an ideal issue, and one that he could not avoid even if it weren’t. “My friends,” he could say,

our Democratic opponents are right about one thing: this election will indeed have a significant impact on the direction of our country. The one-vote Democratic majority in the U.S. Senate has been blocking the nomination of judges who will apply the law as written. They prefer judges who will ignore plain text and “liberally construe” statutes when it suits their own partisan purposes. If you want judges who will “liberally construe” a 51 day deadline so that it is no deadline at all, then by all means vote for my opponent, who benefited from their liberal construing. If you want judges who will be bound by law rather than who feel free to create it, then vote for me.” etc.