Opinion: Playing Politics -- Politicizing the High Court
Over the past decade, the Court has been filled by Democrats, Republicans, and Independents -- not simply by Justices.
When I started covering New Jersey politics and government, in the late ‘70s and early ‘80s, we didn’t ask what political party a state Supreme Court Justice belonged to. The person was a Justice; that’s what counted.
Today, anyone who follows the state scene can probably tell you that Stuart Rabner and Barry Albin are Democrats, Helen Hoens and Anne Patterson are Republicans, and Jaynee LaVecchia is an independent. Over the past decade or so, the Court has become politicized.
What does that mean exactly? To me it means two things: 1) we think of the justices more in terms of their party affiliation, at least as it existed in their backgrounds, and 2) we think that justices who have not yet achieved “lifetime” tenure are more likely to shy away from a particular position for fear of offending the governor or legislators and thus jeopardizing that tenure.
This is not all Gov. Chris Christie’s fault. But he plays a substantial role in it. His decision not to reappoint Justice John Wallace was like a body blow to the Court’s sense of itself as a tribunal generally free of politics and insulated from the power of the other branches.
Wallace was the first justice in the modern era to be denied tenure. Christie’s position was that while Wallace himself may not have been a liberal activist, he was part of a Court that had delivered liberal activist opinions, and the governor was sending a message that he wanted to remake the Court into something more moderate or conservative.
I remember being surprised to hear Christie say that he and Wallace had sat at a University of Delaware football game together, that both were Blue Hen alumni, and that he liked the man. He just didn’t like the Court the man was part of. It was a sign of how seriously Christie took the mission of remaking the Court. That Wallace was the Court’s only African-American justice only added to the reaction at the time of … “He did what?”
What happened next is well-known. The Senate, run by Democrats, refused to hold a hearing on Christie’s nominee to replace Wallace, Anne Patterson, for 15 months. Sweeney wouldn’t allow Patterson to take Wallace’s seat until Wallace’s 70th birthday, when it would have become vacant anyway. Only when Justice Roberto Rivera-Soto stepped down early did Sweeney agree to lift the ban on Patterson. She could take the Rivera-Soto seat if confirmed. Christie went along with that.
But then the governor nominated Philip Kwon and Bruce Harris to fill the Wallace seat and that of the soon-to-be-70 Justice Virginia Long. The Senate waited a long time before holding confirmation hearings, rejecting first Kwon and then two months later Harris. It was the first time in the modern era that the Senate failed to confirm a governor’s High Court nominee, and it happened twice in a season.
Kwon was rejected because of his family’s financial practices but also because Democratic senators felt he was a closet Republican masquerading as an independent. Harris was rejected because of a feeling that he wasn’t of sufficient stature for the Court but also because he was a registered Republican, and by this point the Senate was seeing partisan stripes on High Court nominees. Long and Wallace were Democrats. Kwon and Harris were “Republicans.” The Republican Patterson had replaced the Republican Rivera-Soto, so Democratic senators felt Christie was trying to pack the Court 5 to 2.
Suddenly, the status of Justice Jaynee LaVecchia became part of the argument. She’s an independent! cried the governor and his Republican allies. She was appointed by Governor Whitman, replied the Democrats, and served in two Republican administrations! We in the press corps were all seeing partisan stripes and writing about them.
Simultaneously, the entire judicial branch, led by the Supreme Court, was trying to have judges exempted from the new Pension and Benefits Reform Act. Instead of 3 percent of salary, judges would have to pay 12 percent toward their pensions and more also for their health coverage. It was a Superior Court judge, Paul DePasquale, who filed the challenge, but you had to believe Chief Justice Rabner either signed off on it or gave it his tacit blessing. When Judge Linda Feinberg sided with the judiciary at the trial level, Gov. Christie laid into her with all of the bile he is capable of, calling her self-interested and money-hungry like the rest of the judges.
(Columnist's note: "Since the initial version of this column was posted, it has been brought to my attention that Rabner did not bless the filing of a lawsuit. According to other printed sources, he urged the Legislature and governor to exclude judges from the pension reform, but after they went ahead, he urged state judges not to sue to overturn that provision of the law.)
Rabner recused himself from the decision released in July that upheld Judge Feinberg. Christie arched an eyebrow about that, as he had over Rabner recusing himself on last year’s school funding decision. The relations between these two would make a great story someday, if it could ever be learned. Fast friends at the U.S. Attorney’s Office. Christie recommending Rabner to Gov. Corzine as a chief counsel. Then each of them going their different ways and clashing as the leaders of the executive and judicial branches.
The High Court ruling last month that said judges are constitutionally protected from higher pension and benefits contributions was 3 to 2. The two dissenters were the Republicans Hoens and Patterson. Neither of them has come up for tenure yet. They sided with the governor and legislature, who will determine whether they get reconfirmed. LaVecchia and Albin, who sided with the judges, both have tenure, and the third vote was by a temporary justice, Dorothea Wefing. It looked almost as if those who need to please the governor did so, and those who don’t didn’t. While I don’t believe that to be the case, the result could be construed that way.
So again, we are looking at the partisan stripes on our justices. Again, I don’t think this began with Chris Christie. It probably began with "Democratic State Committee v. Samson," the highly controversial case in 2002 in which the State Supreme Court allowed the state Democratic party to substitute Frank Lautenberg for Bob Torricelli on the November ballot after the statutory deadline had passed. That bred disenchantment among Republicans with Chief Justice Deborah Poritz, a Whitman appointee who had also served in two Republican administrations. She was already under GOP suspicion for her selection of Larry Bartels of Princeton University as tie-breaker in the legislative reapportionment following the 2000 census, and Bartels’ siding with the Democrats. Her Republican bona fides faded even more after the Supreme Court allowed Gov. McGreevey to borrow money without voter approval, outlawing it going forward but allowing it for one year more. Poritz was a closet liberal, most Republicans concluded. The Torricelli switcheroo came to occupy the same place in New Jersey political lore as Bush v. Gore occupies in the national story --a pivotal, consequential, and unforgettable ruling.
Now the governor has two more nominations to make, for the seats Harris and Kwon would have taken. It’s been reported that one of those will be Lee Solomon, former BPU President under Christie, former Republican assemblyman, currently and once before a Superior Court judge.
Politically this is a brilliant and unassailable choice. Solomon's been confirmed by the Senate four times before! Why Christie didn’t select him the first time around, one has to wonder; the only thing he doesn’t have that Harris and Kwon did is “diversity.” Christie believed he was fulfilling Steve Sweeney’s request for minority representation when he nominated a Korean and a gay black man (on the day before a big gay marriage vote in the senate, which added another “political” element to the stew). He would probably say that’s why he didn’t think of Solomon back then, that Sweeney hadn’t asked for another white guy or a Jew from South Jersey.
The big question is, will Christie also nominate a Democrat? Senate Judiciary Committee chairman Nick Scutari is insisting on that, as other Democratic senators appear to be. And will it be a package deal---two nominations at the same time? Christie is only saying that it’s his right two appoint two Republicans, because that would make the Court 4-2-and one independent, LaVecchia. Democrats are saying it’s got to be a Democrat because LaVecchia counts as a Republican and a 5-2 Court violates the tradition of party balance on the 7-person Court.
Back in 1986 when Gov. Tom Kean renominated Robert Wilentz as Chief Justice, and fought for him, despite having called Wilentz’s Mt. Laurel II decision “communistic,” no one was counting heads as they do today. Kean was a Republican, Wilentz a Democrat, but the fight was about where Wilentz lived and how he ruled, not about party affiliation.
Maybe I’m getting old, but it all seems more petty and slightly disrespectful now. Justices like Alan Handler, Stewart Pollock, Daniel O’Hern, Gary Stein, and Marie Garibaldi had the same backgrounds as today’s justices but somehow seemed less tainted by party affiliation. Okay, I’m definitely getting old, but the Court is also more “politicized,” as defined at the top of this column.
I guess that’s what happens when you try to remake an institution as respected but delicate as the New Jersey Supreme Court. Political tension is the byproduct.