The Senate Judiciary Committee has voted unanimously to send the Supreme Court nomination of Faustino Fernandez-Vina to the full Senate for confirmation, paving the way for the Camden County judge to become just the second Christie appointee to be seated on the state’s highest court.
A vote of the full Senate is the next step for the nomination. According to a spokeswoman for the Senate Democrats' office, no votes are on the calendar. And Sen. President Stephen Sweeney (D-Gloucester) has until the end of the year to schedule one for Fernandez-Vina.
Michael Drewniak, spokesman for Gov. Chris Christie, said in a statement that Fernandez-Vina is a “highly qualified candidate with a distinguished legal career,” who “will bring diversity, integrity, and wisdom to the Court.”
Fernandez-Vina is only the second of six Christie nominees to make it through the Judiciary Committee, as Democrats openly rebel against what they see as the governor’s attempt to remake the court. And even as the governor’s nominee won unanimous support from the committee Thursday, Democrats continued to criticize the governor for denying tenure to two associate justices -- Democrat John Wallace in 2010 and Republican Helen Hoens, whose tenure is up later this month.
“In some ways, I am a little unhappy that we are voting again to replace a sitting justice who is being denied tenure,” Sen. Loretta Weinberg (D-Bergen) said after praising Fernandez-Vina. “It is a reflection on the independence of the judiciary.”
Drewniak, however, said Senate Democrats have an obligation to vote on Christie’s nominees.
“Gov. Christie still has two other equally qualified nominees who have been denied the same courtesy of a hearing,” he said. “There are no legitimate excuses for continuing the obstruction. The Senate leadership must meet its constitutional obligation to give them each a hearing and an up-or-down vote.”
Christie has been battling with Democrats over the direction of the court since his decision not to renominate Wallace. The governor's choice to replace Wallace, Associate Justice Anne Patterson, was denied confirmation in the Senate by Sweeney.
The Wallace seat -- and that of former Associate Justice Virginia Long, who retired in 2012 -- remains vacant. Patterson was eventually confirmed to the court, replacing Associate Justice Robert Soto-Rivera, who stepped down when his seven-year appointment expired in 2011.
Democrats say Christie ignored years of tradition by refusing tenure to Wallace and that he is politicizing a court traditionally balanced by political party. Christie, however, countered that the state constitution gives the governor sole responsibility to fill the court, with advice and consent from the state Senate, and that his goal was to remake a court that has been overstepping its authority.
The battle has left the court with two vacancies, which are being filled with lower-court judges. Two nominees, Philip Kwon and Bruce Harris, failed to make it through the Senate Judiciary Committee and two others, BPU President Robert Hanna and Superior Court Judge David Bauman, remain in limbo.
Fernandez-Vina, a Cuban-born immigrant, would become only the second Latino to serve on the high court. He was first nominated to the bench in Camden County in 2004 by Democratic Gov. James McGreevey, and then confirmed for tenure in 2011. He was named assignment judge in Camden by Chief Justice Stuart Rabner.
Thursday’s two-and-a-half-hour hearing was mostly cordial, though Sens. Nick Scutari and Raymond Lesniak (both D-Union) clashed with Fernandez-Vina during questioning.
Scutari, the committee chairman, grilled the nominee about his views on when it would be appropriate for the Supreme Court to overrule a jury award in a civil case. The nominee responded repeatedly that he would not comment on past cases or pending cases, and that he would follow the same process in judging every case that came before him.
“I can assure you, Senator, that should that case come before the court again, or that type of case, I would review the facts completely, understand the facts to the best of my ability, and review the law and make my decision based on the facts and the law,” he said.
Scutari continued to press the nominee, asking him whether the court does “the jury a disservice” when it overrules its decisions.
Fernandez-Vina responded by calling juries the foundation of the judicial system and saying that should he be asked to rule on a decision made by a jury in a civil case, he would “follow the law and apply the facts.”
“I suggest that is what I have done for 10 years and what I would continue to do,” he said.
Lesniak initially signaled that he would vote against the nominee because of Fernandez-Vina’s refusal to say whether he agreed with two past Supreme Court cases: the Mount Laurel rulings, which struck down exclusionary zoning laws and established a responsibility at the local level to provide affordable housing, and Abbott v. Burke, which ordered the state to equalize school funding.
Fernandez-Vina said that the cases were settled law and that his “opinions are of no importance.”
“Judges should apply the laws to the facts and nothing else, no personal opinion or personal bias should ever intrude in that,” he said.
“I cannot vote for someone,” Lesniak said in reponse, “who cannot give their opinion on issues like whether the New Jersey constitution applies to exclusionary zoning, to a thorough and efficient education, or whether gay couples should have the same rights and obligations as straight couples.”
When it came time to vote, however, Lesniak backtracked. He said he had been prepared to vote for Hoens and, despite Fernandez-Vina’s refusal to answer questions, he did not see Fernandez-Vina and Hoens being far apart in their judicial philosophy.
“You are replacing Justice Hoens, who should have been reappointed, just like Justice Wallace,” he said.
Sen. Gerald Cardinale (R-Bergen) praised the nominee.
“I am very impressed with the statements that the candidate made with respect to the separation of powers,” he said. “He recognizes that there are three branches of government and that the court is only one of those branches.”
After the hearing, Sen. Kevin O’Toole (R-Essex), a member of the Judiciary Committee, issued a statement.
“Judge Fernández-Vina gracefully proved his fitness for the state’s highest court, while ethically and calmly avoiding the bait that some Democratic Senators presented in the form of politically pointed questions about cases and issues pending before the Supreme Court,” he said.