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Analysis: New Jersey Getting Supreme Court ‘Moderate Majority’

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.

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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