In a stunning move, Gov. Chris Christie yesterday raised the political stakes in his three-year battle with Senate Democrats over the ideological future of the New Jersey Supreme Court by deciding not to renominate Associate Justice Helen Hoens, a Republican whom Democrats had vowed to block. He chose, instead, to nominate a Hispanic Republican judge from Camden County -- Superior Court Judge Faustino Fernandez-Vina.
Christie, who is heavily favored to win reelection in November, made it clear that he is committed to “reshape the court” by appointing a conservative majority to a New Jersey Supreme Court that he believes “overstepped its role” in a series of Abbott v. Burke school funding and Mount Laurel affordable housing cases, and can count on getting more controversial cases: A Superior Court judge in Mercer County will hearing oral arguments in what could turn out to be an historic case regarding gay marriage this Thursday.
But Senate President Stephen Sweeney (D-Gloucester) has made it equally clear since Christie’s unprecedented refusal to renominate Associate Justice John Wallace, a Democrat, in 2010 that the Senate will not accede to Christie’s desire for a Supreme Court stacked with four Republicans, two Democrats and a registered independent who served in two Republican administrations.
Hoens and Associate Justice Anne Patterson, a Christie nominee, have been the governor’s staunchest supporters in politically charged cases. Democrats have castigated Hoens for her dissenting votes against requiring the Christie administration to restore a $500 million school aid cut in 2012 and backing the governor’s right to unilaterally abolish the independent Council on Affordable Housing.
Christie’s decision to nominate Fernandez-Vina gives him the opportunity to criticize Democrats during the fall campaign for failing to approve his nomination of a Cuban-American who would be the only Hispanic -- and the only South Jerseyan -- on the Supreme Court.
But it also continues the political stalemate and makes it increasingly likely that the state’s once-proud seven-member Supreme Court will go into October with just four justices -- only two with tenure -- and three fill-in appointees from the Appellate Division to hear cases on a court whose decisions are now scrutinized as much for their partisanship as for their judicial intent.
“Ever since the Justice Wallace decision, it has been one bad surprise after another,” said Robert F. Williams, associate director of the Center for State Constitutional Studies at Rutgers University Camden, and the leading academic expert on the New Jersey Supreme Court. “Our judiciary was highly respected around the country. Not everyone agreed with its decisions, but it was scholarly, thorough, progressive -- some would say activist -- but independent. It is that independence that is being damaged.”
Hoens will now leave the bench in October, and Fernandez-Vina will get in line with fellow Christie Supreme Court nominees Robert Hanna, president of the state Board of Public Utilities, and Superior Court Judge David Baumann, who have been awaiting Senate Judiciary Committee hearings since last December. Two other Christie nominees, Bruce Harris and Philip Kwon, were rejected earlier last year by Senate Democrats.
As a result, Chief Justice Stuart Rabner has been forced to fill out the Supreme Court this year with Appellate Division Judges Mary Catherine Cuff and Ariel Rodriguez, and he could appoint an interim replacement for Hoens as well. Rabner, a liberal Democrat who once worked in Christie’s U.S. Attorney’s Office, could very well be the next justice axed by Christie when he comes up for renomination next June -- assuming that the governor wins reelection.