Opinion: Memo to Christie, Sweeney — Hands Off the NJ Supreme Court

Carl Golden | March 17, 2016 | Opinion
Turning the state’s highest court into a political football erodes the essential belief that it is above partisan considerations

Carl Golden
In May 1986, just shy of 30 years ago, Gov. Thomas H. Kean, in arguably the most controversial personnel decision of his governorship, nominated Supreme Court Chief Justice Robert N. Wilentz to a tenured term on the court.

Wilentz, a towering figure on the court, was bitterly opposed by Republicans in the Senate, particularly for the rulings requiring greatly increased amounts of state aid to poor school districts and mandating that suburban municipalities provide for affordable housing in their zoning and growth plans.

Kean, who disagreed with the court on a number of issues — he once likened the affordable housing ruling known as the Mount Laurel decision to socialism — nonetheless chose to retain Wilentz out of a conviction that preserving the independence of the judiciary clearly outweighed removing a judge because of political opposition to court decisions.

Kean felt that permitting political considerations to exert the deciding influence on judicial nominations would so damage the court system that public confidence would be forever lost and the courts would no longer be perceived as the institution to which people could turn to receive a fair and just resolution of their grievances.

Creating a perception that court decisions were reached while elected officials, preoccupied with political concerns or ideology looked over judges’ shoulders, would shatter confidence and reduce the judicial branch to an arm of the political party that dominated at the moment.

Kean, as politically insightful an individual ever to occupy the governor’s office, knew his action would produce a firestorm, but he was prepared for the reaction and never lost faith that standing resolutely on the principle of judicial independence would eventually triumph.

He strove to keep the debate focused not on Wilentz but on the grave risk posed to the court’s integrity and credibility if the chief justice was removed from the bench as an act of political revenge.

After hours of debate and argument, Wilentz won confirmation with the bare majority of 21 votes and led the court until his death in 1996. The Senate approval was aided in considerable measure by a public pledge by Wilentz that he would move to New Jersey from New York City where he resided while his wife was undergoing medical treatment. (He maintained a residence in Perth Amboy, but spent a majority of his time in New York. Following the death of his wife, Wilentz took up residence in Deal.)

The Kean/Wilentz history is instructive in light of the re-emergence of the confrontation between Gov. Chris Christie and Senate President Steve Sweeney over filling a vacant seat on the Supreme Court, one that’s been occupied for the past six years by a temporary justice selected by Chief Justice Stuart Rabner.

When Christie announced his intention to nominate Judge Robert Bauman to the high court, Sweeney immediately vowed to refuse to consider the nomination because, he argued, it was the governor’s attempt to pack the court and upset the traditional balance of power, which provided that the political party in control of the executive office would enjoy a 4-3 majority on the court. Confirming Bauman, Sweeney contended, would result in a 5-2 Republican majority because Justice Jaynee LaVecchia, despite her status as a political independent, had served two Republican administrations and, for purposes of power alignment on the court, should be considered a Republican.

Christie reacted by warning of “ramifications” if Sweeney persisted in his opposition, a hint that he was considering something of a nuclear option: Refusing to renominate nearly two dozen Superior Court judges when their initial seven-year terms expire this year, denying them tenure and removing them from the bench.

While Christie hasn’t spelled out his definition of “ramifications,” the simple fact that speculation over his denying tenure to sitting judges has sprung up represents an audacious political maneuver by the governor.

It resurrects the prospect of political interference and influence over judicial decisions, sending a subtle warning signal to nontenured judges that their futures may be at stake each time they rule in a case before them. It matters not whether a governor is a Republican or a Democrat; either could use a denial of tenure precedent to rationalize their actions.

Indeed, the dispute between Christie and Sweeney has its roots in the governor’s decision in 2010 to replace Justice John Wallace on the court, the first time in state history that a sitting justice had been denied tenure.

Sweeney was outraged over the Wallace decision, leading to the Senate Judiciary Committee’s rejection of two Republican nominations and a refusal to consider others.

The Senate president shows no signs of relenting and public criticism of a threat to withhold renomination from nontenured judges has risen. Words like “hostage” and “punishing the innocent” have been tossed around, along with dark predictions that the court system would descend into chaos and case backlogs would crush it.

Christie has been equally insistent that LeVecchia be considered an independent and confirming Bauman would restore the traditional political balance to the court.

With compromise seemingly out of the question and with 22 months remaining in Christie’s term, Sweeney can hold out while the court proceeds with six justices and an acting one.

The governor can, and likely will, continue to make an issue of Sweeney’s recalcitrance and suggest hypocrisy on the part of Democrats who have criticized Republicans in the United States Senate for refusing to consider any Supreme Court nominee submitted by President Obama.

While the stare-down between the governor and the senator probably won’t hinder the court in its deliberations, it ill serves the judiciary as a whole by dragging an independent branch of government into a pitched partisan battle, creating the distinct impression that the court system is simply an instrument that reaches decisions based not on law or the constitution, but on prevailing political winds.

Former Gov. Kean’s decision 30 years ago — controversial as it was — strengthened public regard for the court’s integrity by shielding its independence from the stormy crosscurrents of political upheaval.

While it doesn’t appear likely at the moment, it would be wise for Christie and Sweeney to reach common ground and preserve the principle Kean articulated.