Beleaguered Chief Justice Wins Fiery Defense From Republican Former Justice

Colleen O'Dea | May 19, 2014 | More Issues
Concerns about politics encroaching on judiciary are common theme at New Jersey State Bar Association conference

Former State Supreme Court Justice Gary Stein.
Chief Justice Stuart Rabner — whose term on the State Supreme Court will run out in just six weeks — won an extended standing ovation from Democratic and Republican lawyers alike last week, speaking prior to a panel discussion on the influence of politics on the judiciary.

Although he did not participate in the panel, it was an appropriate topic for Rabner.

His reappointment, which would have been pro forma under any other governor in modern times, instead hinges on backroom negotiations between Gov. Chris Christie and legislators.

That situation helps explain why the encroachment of politics on the justice system was more than a just a panel discussion at the annual convention of the New Jersey State Bar Association in Atlantic City. It was a common theme.

It also explains why many of Rabner’s supporters back a constitutional amendment to essentially give justices and Superior Court judges tenure on appointment until retirement unless they are deemed unfit.

But that amendment, first proposed by retired Justice Gary Stein, does not yet have a legislative sponsor. In fact, there are pending amendments that would shorten a justice’s initial term from seven to five years, eliminate tenure by renomination, and require justices to sit for a retention election at the end of an initial term — something no judges in New Jersey face today

This kind of political involvement in the selection and tenuring of judges is exactly what numerous convention panels on judicial independence sought to address at last week’s State Bar Association meeting. A number of lawyers and retired judges say that the current political climate, in which judges face harsh criticism for their decisions, has untenured judges worried about their futures and begging out of controversial cases.

“The fact that there exists today any possible question about his (Rabner) renomination as the chief justice of the New Jersey Supreme Court should be a signal to every lawyer here and to every lawyer and judge throughout the state that the statute, the reputation, and the independence of New Jersey’s judiciary is seriously at risk,” said Stein, a Republican who was a Supreme Court justice for 17 years and, prior to that, director of policy and planning for Republican Gov. Thomas H. Kean.

Stein was the first to propose a constitutional amendment that has since been embraced by the state bar, 20 or 21 county bars, and a number of specialty bar associations and law school alumni associations. It would provide that judges and justices be renominated following an initial seven-year term unless they were considered unfit for office.

He said last Friday during a keynote speech to bar members that, like Rabner, nearly half of 398 sitting judges do not currently have tenure. Many worry about the future and whether they will be renominated if they issue rulings that follow the law but prove politically unpopular and such fears create “a system of judicial subservience, not judicial independence.”

Unlike a hearing of a bar task force on judicial independence at which neither task force members, nor those who testified, mentioned Christie specifically, Stein had no qualms about mentioning the governor by name, questioning his decisions not to reappoint Justice John Wallace four years ago and Helen Hoens last year.

Stein called Christie’s decision not to reappoint Wallace “uninformed and unjustified” because Wallace did not even participate in the court’s school funding decisions, with which the governor disagrees. And he said the governor couldn’t have had Hoens’ “best interests” at heart when he refused to renominate her because she lost about half her pension when she was forced off the bench.

“The governor’s disagreement with our court’s school-funding decision as a rationale for firing Justice Wallace argues for a political philosophy closer to anarchy than philosophy,” said Stein, to applause from hundreds of lawyers in attendance. “His removal was a defiant assertion that the 1947 constitution’s guarantee of an independent judiciary could be destabilized and even overruled by one governor who disdained the judgment of the framers.”

Without a more rational explanation of the decision not to reappoint the justices, Stein said, “The people of New Jersey are left to speculate on published reports that the constitutional framework for an independent judiciary may have been disregarded primarily to advance interests of a political nature.”

All governors, prior to Christie, had reappointed all justices who sought tenure. Stein said Kean, who Christie has called one of his mentors, renominated then-Chief Justice Robert N. Wilentz in 1986 despite having vehement disagreements with some of his rulings — in particular, in the Mount Laurel II case regarding low-income housing requirements — to maintain the independence of the judiciary.

“No matter how much I disagreed with his individual decisions, I would reappoint the chief justice. The issue in my eyes was not Mount Laurel, but judicial independence,” Stein quoted Kean as saying. He said Kean went on to say that when a governor refuses to renominate a justice because of the decisions he rendered, “the New Jersey judiciary will be undermined and I was not going to be a party to such event.”

Further, Stein blasted the recent practice of tying the nomination of judges to the appointments of other positions as “cruel and wrong; it demeans and demoralizes the judiciary and violates the spirit and major premise of our 1947 constitution.”

That time has come, but it must be stopped, Stein said.

“I believe it is time to put a stop to the diminishment and demoralization of the judicial branch,” Stein said, urging the amendment’s passage and placement on the November ballot.

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So far, though, no lawmaker has introduced the amendment in the Legislature. Two members of the Senate Judiciary Committee, which hears all nominations, appeared on a panel following Stein’s speech and both said they need more information before they would consider the amendment.

Sen. Nicholas Scutari (D-Union), the chair of the committee, said he is hesitant about “tinkering with the constitution” and is not sure it is necessary, given the negotiations over Rabner.

“The system as we have it is not perfect, it never has been, but it’s pretty close,” Scutari said. “Is there room for dialogue? Absolutely. But we don’t just play around with the constitution without strongly considering the ramifications.”

Scutari supports Rabner’s renomination and said the fact that there are less than 45 days until his term expires should not be cause for concern because there is still enough time to keep him at the head of the court.

“The governor ran on a platform of remaking the judiciary. He has no choice but to consider it very carefully,” Scutari said.

Sen. Kevin O’Toole (R-Bergen) said he wanted to hear more debate on the amendment before making up his mind. But he also came armed with statistics to defend Christie from “this hysteria” about the state of the judiciary since the governor took office. He said Christie reappointed a greater percentage of judges than his predecessor Gov. Jon Corzine and he has only been doing what is allowed by the current constitution.

“They (the framers of the constitution) didn’t say judges shall be reappointed. Whether you agree with them or not, they didn’t say it,” O’Toole. “Maybe they were wrong.”

John Farmer Jr., dean of the Rutgers Newark Law School and chief counsel and attorney general to Gov. Christie Whitman, appeared on a panel with the senators and said that while he was initially “resistant” to the idea of a judicial amendment, he now supports it. He said New Jersey politics are much more polarized and it’s likely that will continue to plague the judicial appointment process without an amendment.

“There is a need for some systemic reform,” Farmer said.

For his part, Rabner addressed the bar members before the discussions of judicial independence and did not touch on the question of the pending expiration of his term. He discussed the status of the courts, including its continuing slow progress in automating court filings. But the crowd seemed to acknowledge it, giving him a sustained standing ovation following his remarks.

Christie has recently criticized the court, and Rabner in particular, for a number of decisions, including one in which the court declared Christie did not have the power to abolish the Council on Affordable Housing, which oversees the Mount Laurel decisions. He has criticized the court as “activist” and said that decision bolstered his determination to “bring commonsense” to the judiciary.

These are quite different sentiments than those Christie expressed in 2007, when Corzine nominated Rabner to head the top court. Christie said politics should not stop Rabner from being named.

Scutari said he expects a resolution to Rabner’s future soon.

“High-level meetings have been going on,” Scutari told the lawyers. “I think you will know the answer soon. Your voices have been heard by the governor’s office.”