[INSPRATIONAL MUSIC STING] - We're now joined by Paula Franzese, who is Peter W. Rodino Professor of Law at the Seton Hall University and our expert on anything that involves the judiciary.

Good to see you, my friend.

- It's wonderful to see you, Steve.

- You got it.

Paula, put this in perspective.

We're gonna talk about some state judicial issues and then people may have heard there's some federal judicial issues.

We'll talk about what the heck is going on in the state level, that there's an effort on the part of some to amend the state constitution to transfer the authority, follow me on this, folks, to appoint appellate judges to the judiciary currently done by Stuart Rabner, who's the set head of the state Supreme Court to the governor and the Senate.

So appellate court judges would no longer be appointed by the head of the state Supreme Court, but by the governor and the legislature.

What the heck is the problem with that, Paula?

- Well, thankfully it has been tabled, and we're certainly hoping those of us who care deeply in the integrity of the state judiciary and the very simple but heartening fact that the system works, it works very well as it is.

So under the rubric of if it isn't broke, let's not fix it.

We are indeed hoping that what's been floated is squashed.

Right now, it is the chief justice of the New Jersey Supreme Court who elevates experienced trial court judges to the appellate division.

And that's a very good system because it is largely immune from political pressures and political whims and sensibilities and entrusts with the very learned integrity led chief justice, the responsibility to reward excellence and place into the revered appellate division, judges who are really excellent.

New Jersey has one of the finest state judiciaries in the nation, and it is acclaimed for the excellence of the work that it does.

So with all of that in mind, it would seem folly to want to tinker with, let alone seem to politicize the system.

- Okay, so that effort to be clear, is tabled.

- I sure hope so, Steve.

You know what?

It may be me issuing that declaration.

It sure ought to be tabled and we haven't heard much since- - Okay.

- it was floated.

- Okay, so let's shift gears.

Well, it's not even shifting, Paula, it's again, trying to deal with the fact that as we do this program at the end of June, it'll be seen later.

It appears as if a significant number of Americans seriously question how independent the judicial system is, how independent the Department of Justice is on the federal level.

To what degree do you understand that there are a significant number of New Jerseyans and Americans who question our judicial system right now and who believe, as it's been stated by many in very public situations, very high profile people, including our former President Donald Trump, that the Department of Justice and the judiciary is, quote unquote, being weaponized?

That's the word that is used versus oh no, we have a pretty darn independent judiciary and Department of Justice and that is not really an accurate perception of things as I described before.

Talk to us.

- You're certainly right that public confidence in the judiciary seems to have hit all time lows.

It certainly is at its lowest that it has been in the last 50 years.

And as I study that rather disheartening phenomenon, what seems to me is that there are persons assiduously working in tandem with media and various other outlets to undermine the legitimacy of the judiciary.

- Why, to what end, Paula?

What would be the goal?

- I think it, I think it is two parts.

One is a reflection of the larger fraying of our nation's social fabric, our civic fabric, the hyper partisanship and hyperbole that has essentially pitted one side against another.

For the first time, we've got the word "tribe" to describe one's partisan affiliations.

Think about that.

A certain tribalism can be frightening and can disinhibit viewpoint diversity.

People seem intent on winning at all costs, to doing whatever it takes in order to prevent what they perceive to be the other side as winning.

We've got the media delegitimizing the judiciary, we've got a former president referring to jurists as so-called judges.

We've got activists who are using surreptitious means under the banner of journalism, to essentially play games of gotcha journalism.

It is wrong.

And I think what all of us have to do as citizens who love our country so much and believe in our democracy and its tripartite system of government, we've all gotta be working assiduously in our respective spheres of influence to stoke and foster a sense of not condemnation, but deep pride in our tripartite system.

It works.

- But Paula, respectfully, your points are well taken in terms of those who have an agenda.

And the agenda is often not about helping people truly understand what the reality is about our judicial system, what the reality is about our Department of Justice.

Okay, they have their own agenda, but there are legitimate concerns and issues as it relates to, and I'll be very specific, the argument about an independent judiciary in the state.

You made that case.

New Jersey is recognized around the country.

You and your colleagues who are experts in the field understand that.

But the United States Supreme Court has individual jurists, associate justice of the Supreme Court.

Two in particular, and I want you to help us understand this.

Number one, if one of the judges on the Supreme Court, Clarence Thomas, over the past 20 years has received public, this is public information now, approximately $2.4 million in gifts, travel on private planes, a whole range of gifts from a, quote unquote, Republican donor who has a very clear agenda and he has a right to as an American citizen.

The fact that Clarence Thomas has not disclosed those gifts, A and B, the court regulates itself.

That should not be of a concern to millions of Americans who wanna believe that the US Supreme Court and those judges on it are independent and disclose things like this?

- It is absolutely a matter of very significant public concern.

Certainly to the extent that a gift giver is not a private friend as the justice seems to have asserted, but rather someone who has business before the court.

If that were the case, of course, recusal would be mandated, and we would presume that any justice subject to that sort of a conflict of interest would recuse.

But that's not what we seem to have in this instance.

Certainly as concerns Justice Alito, who has been known for adhering, as Justice Thomas has, viewing to a particular interpretation of the Constitution.

It's called originalism.

And whether we agree with it or disagree with it, the justices, those have been quite consistent in their constitutional interpretations.

I don't know that there is an actual litigant before the court or litigator before the court who is actually not only a friend or associate of a justice, but a gift giver of such largesse as you described.

But again, if that was the case, that justice would have to recuse.

- Okay, but one thing at a time.

But Paula, first of all, it wasn't disclosed until media organizations researched it, got the information, disclosed it.

Clarence Thomas did not voluntarily disclose that.

And that's number one.

And let me also clarify in the spirit of transparency, Seton Hall Law School is not an underwriter of our programming, but Seton Hall University is, to clarify.

So A, should judges on the Supreme Court disclose those gifts?

A and B, who the heck regulates the court?

- Good, two essential points.

Justice O'Hern and I had served as Special Ethics Council to one of our former New Jersey governors, and we came to two essential predicates for good government, for good decision making, for an effective three branches of government.

And the first of those is transparency.

Sunlight is the best disinfectant.

Disclosure forms should be mandated, and they should be on a public database, so that all of us, we the people, will know to follow the money if it's there and then know whether or not there's a reasonable basis for a shaking public confidence in independence.

In addition, as you say, there needs to be accountability.

There has to be an enforcement mechanism for the new ethics code that the Supreme Court did impose upon itself last year.

The problem.

- Who enforces it?

- The problem with the code is the justices imposed it and it's self enforcing and self-policing.

Having an independent overseer or auditor is necessary and would go a long way to restoring a very shaken public trust.

- Let me do this 'cause there's only a couple minutes left.

Justice Alito, I wanna be clear on this.

Do you believe that a justice on the Supreme Court, the US Supreme Court, has every right to fly a flag, to express an opinion, to have his wife or her husband or significant other, express political views through a flag or whatever, that they have every right to do that and that has nothing to do with cases that maybe come before them as a member of the Supreme Court.

Translation, Justice Alito has said basically those flags with the upside down American flag, which were flown by many on January 6th, an insurrection, an effort to stop the transfer, the peaceful transfer of power in our country, that I didn't do that, my wife did that.

I've got nothing to do with it.

Question, to what degree are the political leanings of justices on the Supreme Court or their significant others, relevant to the American public as it relates to confidence in the judicial system?

- Well, I certainly think that it is relevant to public perception.

As concerns Justice Alito, and I had the privilege of working with Justice Alito when he was a Third Circuit Court member.

He has served on the bench for three decades, almost two, on the US Supreme Court.

I know him to be an integrity-led person who has endeavored mightily to be non-partisan and apolitical.

- What about on this?

- Yeah.

- He argues, it's not me, it's my wife.

- On this matter, I do first of all believe that he and Mrs. Alito are two separate and independent entities.

I also believe him when he has said to the press that he was unaware at the time, and it seems from the record, that once he became aware, that flag became no more.

I do think it's unfortunate, however, during these very combustible, fractious times, that those episodes did in fact occur because perception is everything and regardless of that, and the fact is that Justice Alito has long viewed to the same constitutional interpretation that he embraces today.

He is a person of mighty intellect and great honor.

Irrespective of those facts, perception is damaging in this case.

- And finally, there may be cases, there are cases that will come before the Supreme Court that involves January 6th and its implications and former President Trump as it relates to January 6th and its implications.

People can decide for themselves.

Paula Franzese, Peter W. Rodino Professor of Law at Seton Hall University.

Paula, as always, thank you so much for joining us.

We appreciate it.

- Great to be with you.

Thank you, Steve.

- You got it.

Stay with us folks.

We'll be right back.

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