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Christie’s Judicial Shuffle Escalates Supreme Court Battle

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.

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