Democrats Reject Kwon Nomination . . . and Gov. Christie

Abbott v. Burke and Mount Laurel decisions figure large in six-hour confirmation hearing

Credit: Tony Kurdzuk/The Star Ledger
Phillip Kwon
For a little over six hours yesterday, Phillip Kwon withstood a barrage of questions about his family, his finances, and, yes, even a few about his judicial philosophy in his Senate confirmation hearing to serve on the state’s Supreme Court.

It was to no avail. The Senate Judiciary Committee voted 7-6 along party lines to reject his nomination by Gov. Chris Christie, the first time the Senate has ever rejected a nomination to the court.

Yet to hear the comments both during and after the hearing, the rejection wasn’t so much about Kwon’s qualifications as it was about the control of the state’s highest court and maybe some big decisions coming its way.

State Sen. Ray Lesniak (D-Union), one of the seven Democrats who voted against Kwon, said his opposition came down to the governor’s openly trying to overturn such cases as Abbott v. Burke and Mount Laurel, the school funding and affordable housing decisions.

“It’s about that and the governor on a case-by-case basis trying to rule the judiciary like he rules the Republicans in the legislature,” he said after the hearing. “I think the governor’s entire approach to the judiciary is very troubling. This is part and parcel to that.”

The governor, in an impromptu press conference in his outer office last night, did little to dispel that notion.

He first called the Democrats’ rejection “political payback” at the behest of unions and special interests for his pension rollbacks and other reforms last year, although much of the Democratic leadership voted for those changes.

But when Christie was questioned as to whether it was also about him appointing two Republicans to the bench in Kwon and Bruce Harris, a second nominee yet to be heard, Christie invoked his right to do so.

“I have every right to have four Republicans on the court — I won the election,” he said. “Just as Gov. Corzine had every right to have four Democrats on the court.”

And as much as Christie said that, yes, he hoped in those appointments that the court would reverse rulings like Abbott and Mount Laurel, he repeated that he sought no guarantees from those nominees nor received any.

“Every executive endeavors to appoint justices whom he or she believes will follow their political philosophies,” Christie said. “But that roadway for executives is also littered with disappointment.”

Not that state senators on both sides of the aisle didn’t try to determine Kwon’s preferences during a hearing that started in late morning and ended as the sky was darkening over the Statehouse.

Abbott was brought up yesterday as much, if not more, than any other case . That’s understandable, given that the rulings over the past 20 years are still key to how New Jersey public schools are funded.

Christie has not hid that he thinks the court overstepped its bounds in ordering the massive funding of the state’s neediest districts, one of the initial rulings that led to the state’s income tax in 1976.

And Democrats yesterday jumped on Christie’s comments, seeking to paint Kwon, an assistant Attorney General in Christie’s administration, as a vehicle for that agenda.

In one of the first direct questions on the school funding case, state Sen. Linda Greenstein (D-Middlesex) asked Kwon outright: “What discussions have you had about Abbott education funding with the governor or his representatives or outside individuals or groups? And if you have not discussed the issue, is there anything that would give the governor, or anyone else, the impression that you would revisit the case?”

Like to most questions on specific cases, Kwon didn’t take the bait and said he had no discussions on Abbott or any other case with Christie or his staff. As for any impression he may have given of revisiting the case, Kwon said: “I don’t know how anyone could get that impression from me.”

It was a typical exchange, one that came up with Republicans as well. State Sen. Gerald Cardinale (R-Bergen) is the Senate’s longest-running critic of the Abbott decisions, at one point supporting a change in the state Constitution to get around them.

He sought to get Kwon’s commitment that he would revisit the case, as well as others, in questioning him about the role of judicial precedence

Precedence is a “very important doctrine of jurisprudence,” Kwon said. “It is an important doctrine to respect, but it is also not inviolate certainly. If it were, we wouldn’t have Brown v. Board of Education.”

Abbott came up in other ways as well. State Sen. Nia Gill (D-Essex) was among several Democrats who said Kwon’s work in the Attorney General’s office would have potentially precluded him from hearing any new Abbott case, since the office argued for the state in the latest Abbott litigation.

She said she voted against Chief Justice Stuart Rabner, a former Attorney General, when he came up for confirmation for the same reason. Rabner has since recused himself from Abbott cases at least three times. Kwon said yesterday he would decide on a case by case basis, but Gill said that only adds uncertainty to the court in who is hearing what cases.

“I think it is imperative for issues presented before the Supreme Court — from same-sex marriage to affordable housing to school funding — that a justice can’t be part of a lawyers’ team or office that argued the case the year before,” she said.

In the end, the rhetoric was in high pitch. The Republicans called the hearing everything from a circus to a character assassination to a “lynching,” in the words of state Sen. Kevin O’Toole (R-Essex). The Democrats bristled at the accusations and maintained there were just too many questions unanswered.

Ultimately, Christie said he would go back to the list of potential candidates and come up with another one. He was unusually sedate, expressing his disappointment in no uncertain terms but with little of his infamous invective.

“Don’t take from my demeanor that I am not upset,” he said, closing a lengthy press conference. “But I have a job to do.”