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Analysis: New Jersey Getting Supreme Court ‘Moderate Majority’

To Doherty, Solomon’s decision to sponsor legislation to provide preschool education for three- and four-year-olds in the 31 urban school districts covered by the Abbott v. Burke school-funding cases demonstrated the Republican nominee’s disregard for the New Jersey Constitution, which stated that the state has a responsibility to provide a “thorough and efficient” education only to those between the ages of five and 18. “Judge Solomon, we’re being asked to take a leap of faith here that you will be a strict constitutionalist, and I cannot take that leap of faith,” Doherty declared. “I am being asked to vote for you, a person with a predisposition to vote for preschool,” rather than asking if such an expansion of the role of government is “beyond the shackles of the Constitution.”
Doherty complained after Solomon’s confirmation by a 12-1 vote that “the whole system is rotten to the core.”

Daryn Iwicki, state director of Americans for Prosperty, the conservative political action group founded by the Koch brothers, said Christie “waved the white flag of surrender on his promise to change the direction of the Supreme Court” when he signed off on the Rabner-Solomon trade with Sweeney. Mike Proto, the group’s communications director, said Christie could have made an end run around the Senate by making a recess appointment to the Supreme Court on a day that the Senate was not in session.

Rabner was confirmed by an 11-2 vote, with Sen. Joseph M. Kyrillos (R-Monmouth) joining Doherty in voting against the chief justice’s nomination -- a sign that Kyrillos, the losing Republican U.S. Senate candidate in 2012, may be eyeing another run for statewide office and does not want a vote for Rabner on his record in a contested Republican primary. Both Rabner’s confirmation hearing, which lasted four hours, and Solomon’s hearing were tame by comparison with the stormy Senate Judiciary Committee hearings during Christie’s first term in which Democrats voted along party lines to reject the nominations of Bruce Harris and Philip Kwon, who would have been the first openly gay African-American and first Asian-American Supreme Court justices.

Rabner himself was much less controversial than former Supreme Court Chief Justice Robert Wilentz, whom Gov. Kean renominated despite his disagreement with the Wilentz Court’s Abbott v. Burke school funding and Mount Laurel affordable housing rulings under the theory that judicial independence demanded the renomination of competent justices for tenure.

While Christie has sharply criticized some of the decisions of the Rabner Court, Rabner served in his U.S. Attorney’s Office before joining the Corzine administration, and the relative lack of pointed questions by Sens. Kevin O’Toole (R-Essex), Christopher Bateman (R-Somerset), and even conservative Gerald Cardinale (R-Bergen) indicated a legislative decision to go along with Christie’s agreement with Sweeney.

Solomon, meanwhile, benefited not only from the traditional courtesy accorded by the Senate Judiciary Committee to former legislators, but also to the fact that he had previously appeared successfully before the panel for confirmation four times for such positions as president of the state Board of Public Utilities and Superior Court judge.

While conservatives questioning Christie’s ideological bona fides to run for president are likely to seize upon the criticism by Doherty and Americans for Prosperity, Christie shrugged off conservative complaints when he announced the agreement on Rabner and Solomon last month,

“People want bipartisan cooperation. And then of course when they get bipartisan cooperation, they complain about that, too,” Christie said at a Statehouse news conference, adding that the Supreme Court is “a significantly better court today than it was four-and-a half-years ago when I got here.”

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