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Analysis: New Jersey Getting Supreme Court ‘Moderate Majority’

Conservatives denounce Rabner-Solomon deal, saying Christie reneged on promise to remake activist court

lee solomon
Credit: philly.com
Lee Solomon, Associate Justice of the New Jersey Supreme Court, pending confirmation.

Despite Gov. Chris Christie’s vow to appoint a conservative Supreme Court, the pending confirmations of Democrat Stuart Rabner to serve as Chief Justice for another 16 years and moderate Republican Lee Solomon as Associate Justice guarantee that the state’s high court will continue to be governed by a moderate majority long after Christie is gone.

“Gov. Christie promised to appoint a conservative court that would respect the Constitution and take a fresh look at the school-funding formula. Instead, he has chosen two nominees who are going to maintain the status quo,” state Sen. Michael Doherty (R-Warren), the Legislature’s leading conservative, complained after the Senate Judiciary Committee approved the nominations of Rabner and Solomon yesterday.

Senate President Stephen Sweeney (D-Gloucester) was beaming when he stopped into the Senate Judiciary Committee hearing yesterday to admire his handiwork. Sweeney ended a three-year stalemate with Christie over the ideological future of the Supreme Court last month by agreeing to support Solomon for a Republican seat on the court if Christie agreed to renominate Rabner.

Doherty and other conservatives made it clear yesterday that they believed Sweeney got the better end of the bargain. “Christie would have been better off letting Rabner’s term expire next month than to make this deal,” John Tomicki, executive director of the League of American Families, insisted. “At least the governor would have broken the chain of liberal chief justices, but he chose not to do that.”

stuart rabner
Credit: newsworks
Stuart Rabner was renominated to serve as Chief Justice of the New Jersey Supreme Court.

Instead, Rabner’s confirmation by the Democratic-controlled Senate later this month will enable the 54-year-old Democrat to continue serving as chief justice until 2030, when he turns 70, or even longer if the Legislature pushes through a constitutional amendment raising the mandatory retirement age for judges to 75.

Meanwhile, Solomon -- the Republican that Christie is getting in exchange -- is a former state assemblyman, Camden County freeholder, Superior Court judge, and deputy U.S. Attorney with a reputation as a moderate.

In fact, Solomon sponsored legislation in the Assembly to mandate preschool in urban school districts and was endorsed for reelection by New Jersey Right-to-Choose in the early 1990s based partly on his opposition to legislation requiring parental notification for minors seeking abortion, Doherty noted. Neither Christie, who has proclaimed that he is fervently anti-abortion and is gearing up to run for the Republican presidential nomination in 2016, nor any of the members of his staff questioned Solomon about his beliefs on abortion, the nominee.

Solomon is probably closest ideologically to the establishment pragmatism of Associate Justice Jaynee LaVecchia, an independent who served in the governor’s office and the attorney general’s office in the Republican administrations of Govs. Thomas Kean and Christine Todd Whitman.

LaVecchia has been the critical swing vote over the past four years on a Supreme Court that has been evenly divided politically. It was LaVecchia who wrote the 3-2 majority opinion ordering Christie to restore $500 million in state education funding cut from the 31 disadvantaged Abbott school districts that infuriated Christie in 2011.

LaVecchia has tenure on the court and will not turn 70 until 2024 -- more than six years after Christie leaves office. Rabner, who served as chief counsel and Attorney General under Democratic Gov. Jon Corzine, would be the second Democrat with tenure, joining Associate Justice Barry Albin, an appointee of Democratic Gov. Jim McGreevey, who will turn 70 in 2022.

Solomon, 59, would serve on the Supreme Court until 2021 when he would come up for renomination for tenure. The Christie-Sweeney agreement leaves one seat on the court to be filled on a temporary basis by the most senior judge of the Appellate Division, in this case, Judge Mary Catherine Cuff, a Democrat who has been serving on an interim basis since 2012. In the eyes of conservatives, LaVecchia and Solomon -- as independent and Republican moderates whose political outlooks were shaped by their long service in government – and Democrats Rabner, Albin and Cuff together make up a logical five-vote pro-government majority on the seven-member court.

Cuff, who will presumably remain on the high court until she hits the mandatory retirement age of 70 in August 2017 -- three months before the next election for governor -- will provide a Democratic vacancy that the Democratic-controlled Legislature will rush to fill in January 2018 if Sweeney or another Democrat is elected governor.

Christie’s two Republican appointees, Associate Justices Anne Patterson and Faustino J. Fernandez-Vina, come up for tenure reappointment in 2018 and 2020 during the terms of the next governor.

Whether a Democratic governor would consider Christie’s refusal to renominate Associate Justice John Wallace in 2010 on ideological grounds unrelated to performance as providing a precedent for the replacement of one of the Republicans with a fourth Democrat is unclear, especially after Sweeney excoriated Christie over the same issue.

Christie argued that he should be allowed to replace Wallace with a Republican under the provisions of the New Jersey Constitution, which allows four of the seven justices to be from the same political party. He insisted that LaVecchia should be considered an independent, not a Republican. Sweeney disagreed, insisting that LaVecchia should count as a Republican, making Wallace a Democratic seat. With LaVecchia counting as a Republican, along with Patterson, Fernandez-Vina and Solomon, a Democratic governor in 2018 could argue – based on Christie’s precedent -- that he or she had the right to replace either Patterson or Fernandez-Vina when they came up for tenure. Patterson, a conservative from Christie’s hometown, would be the more likely candidate for replacement because Fernandez-Vina, like Solomon, is more of a moderate; he also comes from Camden County, and was looked upon favorably by Sweeney and other powerful South Jersey Democrats. To Doherty’s chagrin, Solomon will be filling the seat of Associate Justice Helen Hoens, a Republican whom he regarded as a reliable conservative, but whom Christie decided not to renominate last year because he said he wanted to spare her a bruising confirmation battle.

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