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Sweeney Stands Firm: No Hearing on Governor’s Supreme Court Nominee

Democratic Senate leader cites tradition of bipartisan balance; GOP and Christie draw parallel with standoff in D.C.

david bauman
Gov. Chris Christie and his state Supreme Court nominee, state Superior Court Judge David Bauman of Holmdel.

The leader of New Jersey’s Senate declared yesterday that there will be no confirmation hearing for a Superior Court judge Gov. Chris Christie has nominated for a second time to fill a longstanding opening on the state Supreme Court.

That decision by Senate President Stephen Sweeney (D-Gloucester) means a bruising six-year conflict with Christie over the makeup of the state’s highest court will continue through early 2018, when Christie’s tenure will come to an end.

The state constitution gives the Senate final say on gubernatorial nominations for the Supreme Court. But Christie is hoping the issue will get new life as a heated political debate is unfolding in Washington, D.C., over the vacancy created by the recent death of longtime U.S. Supreme Court Justice Antonin Scalia.

At the heart of the feud in New Jersey is a long held but unwritten tradition that the seven seats on the state Supreme Court are divided nearly equally among Democrats and Republicans.

The presence of a sitting justice who is not a member of either party but has firm ties to Republicans has helped to fuel the dispute, along with Christie’s decision in 2010 to break from another court tradition and deny lifetime tenure to a sitting Democratic justice.

Christie – fresh off his failed bid for the GOP’s 2016 presidential nomination – reignited the argument over the makeup of the Supreme Court on Monday by nominating Superior Court Judge David Bauman of Holmdel.

Bauman, a Republican, had already been picked by Christie for a Supreme Court seat in December 2012, but he never received a hearing in the Senate as Democrats maintained his confirmation would upset the high court’s tradition that no party hold a more than one-seat majority.

Tradition of ‘partisan balance’

The tradition of “partisan balance” dates back to the 1947 redrawing of both the state constitution and the entire state court system, according to the state’s leading academic expert on the state Supreme Court, Robert F. Williams, associate director of the Center for State Constitutional Studies at Rutgers University-Camden.

New Jersey’s court system at the time had become politicized and fragmented, and it was a punchline for jokes, Williams said. In response, the framers of the 1947 state constitution drew up a seven-member Supreme Court with a strong chief justice, and they reached an unwritten “gentleperson’s agreement” that the political party of the sitting governor would never get more than four seats.

That tradition over the decades has helped insulate New Jersey’s Supreme Court from accusations of political influence, and it’s enabled the court to forge a strong reputation nationally for issuing only “scholarly” decisions, the professor said.

The custom has also set New Jersey apart from the U.S. Supreme Court, where the lack of a similar policy has made it easy for partisans to criticize high-profile court rulings on political grounds rather than a strictly legal basis.

“It’s actually superior,” Williams said. “I believe it gives some extra legitimacy to the really tough cases.”

New Jersey also requires justices to come up for a tenure reappointment after seven years and to retire at age 70. And another tradition followed by a long line of governors has held that no sitting justice will be denied tenure without cause, even if the justice is from the opposite party of the governor serving at the time.

Playing politics

But Christie – who made remaking the court a central theme of his 2009 run for governor – decided not long after taking office in early 2010 to deny tenure to sitting Justice John Wallace, a Democrat who at the time was the court’s only African-American justice.

Sweeney, in response, accused Christie of putting “rank politics” ahead of decades of tradition. And a seat has remained vacant all along, with Mary Catherine Cuff, an appellate judge, serving on the high court on a temporary basis since 2012.

Now, however, it’s Christie who is accusing Sweeney of putting politics ahead of tradition, maintaining that the Senate president, who many expect will run for governor next year, is trying to prevent Christie from putting a fourth justice on the court – although, despite their feud, the Senate under Sweeney has confirmed Republican justices Anne Patterson, Lee Solomon and Faustino Fernandez-Vina, while Christie agreed to grant tenure to Democratic Chief Justice Stuart Rabner.

Christie said during a State House news conference held Monday to announce the latest nomination of Bauman that just as Democrats in Washington are now scolding Republicans who control the U.S. Senate for saying they won’t hold a hearing if President Obama nominates someone for Scalia’s U.S. Supreme Court seat, the Democrats in Trenton are doing the exact same thing to him.

“We’ve had Democrats throughout this state and around the country clamoring about Washington, D.C., and the idea that it would be absolutely unacceptable for the Republicans in the U.S. Senate to hold up the confirmation of a U.S. Supreme Court justice for 11 months,” Christie said.

“This seat has been held over for six years,” he said. “It’s no longer acceptable.”

But Sweeney held his ground, issuing a statement yesterday that said there’s a big difference. Confirming Bauman would leave the court imbalanced on the side of the GOP, with five Republicans and only two Democrats, running afoul of the “partisan balance” tradition that doesn’t exist at the federal level.

Really a Republican?

Sweeney is counting Justice Jaynee LaVecchia, who is registered as “unaffiliated,” as a Republican. That’s because LaVecchia was nominated to the high court by former Republican Gov. Christine Todd Whitman to fill a seat traditionally held by Republicans. LaVecchia served as the state’s banking commissioner under Whitman and was a lawyer in the administration of former Republican Gov. Tom Kean Sr. She also donated money to Republican Leonard Lance when he served in the state Senate.

“For the past six years I fought to protect the long-standing tradition of keeping political balance on New Jersey’s Supreme Court, and I will continue that fight,” Sweeney said. “This nomination would contradict the intent of the framers of the Constitution by leaving only two Democrats on the seven-member court.”

But Christie and other Republicans have strongly disputed the contention that the unaffiliated LaVecchia is Republican for all intents and purposes.

LaVecchia has written opinions that have both benefitted Christie’s administration, such as last year’s ruling on state public-employee pension funding, and have gone against his administration, including a ruling on school funding in 2011.

“This Senate president has obstructed justice by blocking qualified justices to fill years-old New Jersey Superior Court and Supreme Court vacancies,” said Senate Minority Leader Tom Kean Jr. (R-Union).

“This unprecedented disservice to the people must stop now,” said Kean Jr., the son of the former governor.

Brigid Harrison, a Montclair University law and political science professor and president of the New Jersey Political Science Association, suggested Christie, by reigniting the fight with Sweeney over the state Supreme Court, is trying to take advantage of the national debate – in the glare of the 2016 presidential election – that was spawned by Scalia’s recent passing.

“Clearly, he is trying to capitalize on the political context of the appointment of Justice Scalia’s replacement,” she said.

By refusing to even hold a hearing on Bauman, she said, Sweeney is running the risk of alienating voters who are growing increasingly upset with partisan gridlock in both Washington and Trenton.

“I think most Americans who look at this kind of stuff regularly would recognize that this is out of line,” Harrison said. “This is what the constitution requires of him.”

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