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Trenton remains stuck in a political rut on High Court nominees.
THE NEW JERSEY STATE SUPREME
Court has been without a full complement of justices for three years. It’s an
unprecedented situation that has turned
our state’s highest court—long a beacon
for judicial excellence and independence—into a case study for partisan political wrangling.
New Jersey’s 1947 Constitution stipulates that the governor shall nominate
and appoint the chief justice and associate justices of the Supreme Court and
that the state Senate will provide “advice
and consent” on the nominees. But all of
Governor Chris Christie’s picks—except
for Justice Faustino J. Fernandez-Vina,
a Republican who was confirmed by the
Senate in November—have been put on
hold, rejected or not considered at all.
Current nominees David Bauman
(a Republican) and Robert Hanna (
politically undeclared) have been waiting
for Senate confirmation for more than
a year, but no hearing date has been
scheduled. As a result, two of the seven
justices are serving on a temporary basis.
“What is currently going on with the
Supreme Court is very troublesome,”
says Paul Tractenberg, professor of law
at Rutgers Newark and author of the
book Courting Justice: Ten New Jersey
Cases That Shook the Nation (Rutgers
University Press, 2013).
The problem goes back to 2010, when
Christie opted not to reappoint Justice
John Wallace, a Democrat. “Since then,
we have been snarled up in this unfortu-
nate and highly political situation with
a governor still pretty explicitly trying
to reshape the court,” says Tractenberg.
Meanwhile, Senate Democrats are resist-
ing Christie’s efforts. “It is not a happy
time,” says Tractenberg, “and hopefully
Tractenberg explains that our Su-
preme Court has achieved national prom-
inence in part because of its tradition of
partisan balance. “From the days of Chief
Justice Arthur T. Vanderbilt in the 1940s,
New Jersey for about 100 years before
1947, was the notion that the court should
be balanced in terms of partisan affilia-
tion,” he says. “One of the things driving
the Democrats now is the concern that
Governor Christie may not be willing to
adhere to that and may be altering the
courts in a way that shifts that balance.”
But has the court really been bal-
anced? “Since 1948, the court has had
a Democratic majority for 50 years,
compared to only 13 years of a Republi-
can majority,” says state Senator Kevin
O’Toole, a Republican.
O’Toole argues that, after winning
61 percent of the vote in 2013, Christie
has a right to appoint justices who share
his vision, as long as those nominees are
qualified. In addition, O’Toole points out
that New Jersey’s last six Democratic
governors each had a Supreme Court
with a Democratic majority or an even
number of Democratic and Republican
justices (and one independent).
The issue of balance is particularly
important at a time when some in Tren-
ton—including Christie and O’Toole—
believe the court has been overstepping
its bounds and needs to be reshaped and
restrained. They argue that the court has
gone beyond its constitutional role, for
example, by mandating low- and moder-
ate-income housing in certain communi-
ties and ruling on per-pupil spending in
urban school districts.
But according to Tractenberg, the
court has stepped in because New Jer-
sey’s governors and legislators have
shirked their responsibilities on these
and other difficult issues. “I think the
Legislature, and to some extent our gov-
ernors, have wimped out by saying these
are tough decisions, and how we decide
them is bound to make someone unhap-
py, so let the court decide and then we
can blame the court. That has been the
dynamic for decades.”
The stalemate is likely to continue.
The Democrats don’t feel compelled to
approve any Christie nominees, and the
governor isn’t looking to continue this
fight (which he is unlikely to win) as he
ponders a White House run in 2016. ■
THE HIGH COUR T: Top row, from left: Judge Ariel A.
Rodriguez; Justice Anne M. Patterson; Justice Faustino J. Fernandez-Vina; and Judge Mary Catherine
Cuff. Front row, from left: Justice Jaynee LaVecchio;
Chief Justice Stuart Rabner; and Justice Barry T.
Albin. Rodriguez and Cuff are acting justices.