Christie’s Judicial Shuffle Escalates Supreme Court Battle

Mark J. Magyar | August 13, 2013 | Politics
Governor undermines court by discarding Justice Hoens, NJ Bar Association leader says

New Jersey Supreme Court at the Richard J. Hughes Justice Complex in Trenton
In a stunning move, Gov. Chris Christie yesterday raised the political stakes in his three-year battle with Senate Democrats over the ideological future of the New Jersey Supreme Court by deciding not to renominate Associate Justice Helen Hoens, a Republican whom Democrats had vowed to block. He chose, instead, to nominate a Hispanic Republican judge from Camden County — Superior Court Judge Faustino Fernandez-Vina.

Christie, who is heavily favored to win reelection in November, made it clear that he is committed to “reshape the court” by appointing a conservative majority to a New Jersey Supreme Court that he believes “overstepped its role” in a series of Abbott v. Burke school funding and Mount Laurel affordable housing cases, and can count on getting more controversial cases: A Superior Court judge in Mercer County will hearing oral arguments in what could turn out to be an historic case regarding gay marriage this Thursday.

But Senate President Stephen Sweeney (D-Gloucester) has made it equally clear since Christie’s unprecedented refusal to renominate Associate Justice John Wallace, a Democrat, in 2010 that the Senate will not accede to Christie’s desire for a Supreme Court stacked with four Republicans, two Democrats and a registered independent who served in two Republican administrations.

Hoens and Associate Justice Anne Patterson, a Christie nominee, have been the governor’s staunchest supporters in politically charged cases. Democrats have castigated Hoens for her dissenting votes against requiring the Christie administration to restore a $500 million school aid cut in 2012 and backing the governor’s right to unilaterally abolish the independent Council on Affordable Housing.

Christie’s decision to nominate Fernandez-Vina gives him the opportunity to criticize Democrats during the fall campaign for failing to approve his nomination of a Cuban-American who would be the only Hispanic — and the only South Jerseyan — on the Supreme Court.

But it also continues the political stalemate and makes it increasingly likely that the state’s once-proud seven-member Supreme Court will go into October with just four justices — only two with tenure — and three fill-in appointees from the Appellate Division to hear cases on a court whose decisions are now scrutinized as much for their partisanship as for their judicial intent.

“Ever since the Justice Wallace decision, it has been one bad surprise after another,” said Robert F. Williams, associate director of the Center for State Constitutional Studies at Rutgers University Camden, and the leading academic expert on the New Jersey Supreme Court. “Our judiciary was highly respected around the country. Not everyone agreed with its decisions, but it was scholarly, thorough, progressive — some would say activist — but independent. It is that independence that is being damaged.”

Hoens will now leave the bench in October, and Fernandez-Vina will get in line with fellow Christie Supreme Court nominees Robert Hanna, president of the state Board of Public Utilities, and Superior Court Judge David Baumann, who have been awaiting Senate Judiciary Committee hearings since last December. Two other Christie nominees, Bruce Harris and Philip Kwon, were rejected earlier last year by Senate Democrats.

As a result, Chief Justice Stuart Rabner has been forced to fill out the Supreme Court this year with Appellate Division Judges Mary Catherine Cuff and Ariel Rodriguez, and he could appoint an interim replacement for Hoens as well. Rabner, a liberal Democrat who once worked in Christie’s U.S. Attorney’s Office, could very well be the next justice axed by Christie when he comes up for renomination next June — assuming that the governor wins reelection.


Ralph J. Lamparello, president of the New Jersey State Bar Association, yesterday called upon Christie and Senate Democratic leaders “to end their war over our courts and to exercise their roles in the judicial appointment and reappointment process in the way the framers of our Constitution intended.”

“Governor Christie has now twice broken with 60 years of tradition and ignored the clear intention of the framers of our 1947 Constitution to create a strong and independent judiciary,” Lamparello declared in a stern rebuke of Christie for declining to renominate Hoens.

“Like Justice John Wallace before her, she [Hoens] has served honorably, evaluating each case based on the law and on the facts before her. Her opinions were thoughtful and well-reasoned, and she always conducted herself with the utmost professionalism. She does not deserve to be treated as a political pawn in the battle between the governor and the Legislature over our courts.”

Lamparello added that “the rhetoric here smacks of political one-upsmanship — and will continue the slippery slope we began traveling when the governor made the then-unprecedented move of not renominating Justice Wallace for tenure in 2011. The result of today’s action will be further erosion of the independence of our courts.”

Yesterday’s shocking chain of events was set in motion last month, Christie said during yesterday’s Statehouse news conference, when Sen. Raymond Lesniak (D-Union), a member of the Senate Judiciary Committee made a “very bold and arrogant announcement” about the upcoming confirmation battle over Hoens’ expected renomination.

Lesniak told the Star-Ledger that “there has to be a price paid” for Christie’s refusal to renominate Wallace, the only African-American on the Supreme Court, and that Hoens, whose husband, former Star-Ledger reporter Robert Schwaneberg, works in Christie’s policy office, was the one who would pay it.

“I told Justice Hoens this morning I’m not going to permit the political bent of the Democrats in the Senate to cast a pall on your otherwise outstanding judicial career,” Christie said, adding that Hoens took the decision “like a professional.”


The intense focus on the partisan leanings of New Jersey’s Supreme Court justices is a relatively new occurrence that followed Christie’s decision not to renominate Wallace because he disagreed with his political views.

When the Supreme Court ruled a few weeks ago that Christie did not have the power to unilaterally abolish the Council on Affordable Housing, reporters and analysts focused on how the two justices who backed Christie’s position, Hoens and Patterson, were both Republicans and potentially subject to gubernatorial pressure because they were not yet tenured, Williams, the Rutgers-Camden professor, noted.

“We never paid attention before to whether justices were Democrats or Republicans, tenured or untenured,” Williams said. “Now, it’s the first thing that comes up. It’s the first thing we think about with the U.S. Supreme Court. We’re on that path in New Jersey now when we never were before, and it’s very sad.”

Justices in New Jersey receive lifetime tenure until the mandatory retirement age of 70. They are renominated and reconfirmed after serving a seven-year initial term.

By tradition, since the approval of the 1947 New Jersey Constitution, the state Supreme Court has reflected a rough partisan balance, with no more than four members from either political party, and “the clear intent of our Constitution is that judges were to be denied tenure only in limited circumstances, and never for political reasons,” Lamparello noted.

“Governor [Thomas] Kean decided to renominate Chief Justice [Robert] Wilentz even though some called his decisions communistic,” Williams pointed out, because he felt if he failed to do so, he would undermine the independence of the judiciary, and its status as an equal branch of government not subject to the political whims of the executive and legislative branches.

That is what made Christie’s decision not to renominate Wallace such a controversial decision.

In retrospect, Williams said, Christie’s decision not to renominate Wallace because he was in such a hurry to reshape the partisan makeup of the Supreme Court may have backfired on him.

It was the Wallace decision, he said, that turned New Jersey Senate Judiciary Committee hearings into political battlefields reminiscent of the politically charged Robert Bork hearings in the U.S. Senate, ultimately led Democrats to reject two nominees who would have been the first gay and Asian-Americans to serve on the Supreme Court, and put three nominees now on the waiting list for Judiciary Committee consideration.

“The governor started this battle, and he did it on purpose,” Williams said. “He didn’t have to do it this week. John Wallace only had two years to go until he was 70. If the governor then put up Anne Patterson, no one could have objected even though she was more conservative because she was highly qualified. The only issue would have been over whether his nominees preserved the 4-3 split.”

What makes a justice a Democrat or a Republican for the purpose of calculating that 4-3 split is a question that was never considered by delegates to the 1947 New Jersey Constitution or political leaders in the years that followed “because nominees were either Democrats or Republicans; the concept of a registered independent voter did not exist.”

The Supreme Court’s registered independent, Associate Justice Jaynee LaVecchia, is both the focus of the current political dispute between Christie and Senate Democratic leaders, and also arguably the most important justice on the high court. On a weakened court that consists of two Democrats — Chief Justice Rabner and Associate Justice Barry Albin — Republicans Hoens and Patterson, and fill-in Appellate Court Judges Cuff and Rodriguez, it is LaVecchia who has been the moral and intellectual center of the court.

LaVecchia served in the Governor’s Counsel’s Office under Republican Governor Kean, as director of the Division of Law and as banking commissioner under Republican Gov. Christine Todd Whitman, donated money to Republican Leonard Lance’s state Senate campaign, and was nominated to the Supreme Court by Whitman, making her a Republican in the eyes of Democrats.

But LaVecchia is not a Christie Republican. She wrote the 3-2 majority opinion ordering Christie to restore $500 million in state education funding cut from the 31 disadvantaged Abbott school districts — a decision that Hoens and Patterson opposed, and Christie criticized. Williams said LaVecchia “has been an independent justice in the tradition of Chief Justice [Deborah] Poritz,” the Republican Attorney-General whom she served as a top deputy in the Whitman administration, and a moderate justice whose “judicial activism” Christie and conservative Republicans despised.


To Christie, LaVecchia is not a Republican at all. “Jaynee LaVecchia never registered as a Republican. Just because she worked for two Republican governors doesn’t make her a Republican,” Christie said a year ago at the height of the debate over his Harris and Kwon Supreme Court nominations that were eventually rejected.

If LaVecchia counts as an independent, Christie would theoretically be within his rights to appoint three Republicans — Hanna, Baumann and Fernandez-Vina — to replace Hoens and fill-ins Cuff and Rodriguez, giving him potentially four reliable conservative votes on the court, no matter how LaVecchia votes.

As Sen. Nicholas Scutari (D-Union), the Senate Judiciary Committee chair, put it after Harris’s nomination was defeated last summer, Democrats are willing to give Christie a 4-3 majority that includes LaVecchia as a Republican, but not a “supermajority” of four conservative Republicans, plus LaVecchia, on a seven-member Supreme Court.

If the impasse over the political makeup of the court continues, as is likely at least past the November election, Christie’s decision to try to replace Hoens with Fernandez-Vina actually makes little difference to the court because neither Hoens nor Fernandez-Vina were likely to be confirmed.

It does make a political difference, however, since Christie can criticize Senate Democrats for refusing to confirm Fernandez-Vina as the second Hispanic Supreme Court justice in New Jersey history — an attractive issue when Democrats are running a Latina, Milly Silva of the Service Employees International Union, for lieutenant-governor. Christie wasn’t going to get any political traction criticizing Democrats for failing to reappoint a Republican woman justice from Somerset County.

“The whole battle over the Supreme Court is about politics, and some of us have been hoping for some kind of a grand bargain [between Christie and Sweeney] because a compromise here is hard to imagine given that there are two strong-willed politicians involved who are equally convinced that they are sticking to their principles,” Williams said. “It’s the judiciary, and the people who depend on it for fair decisions, who suffer.”