It's unclear whether adding another Republican justice to the bench of the state's highest court will change its direction, but New Jersey will have adequate opportunity to find out. The addition is part of the deal that Gov. Chris Christie cut yesterday, essentially swapping the Republican seat for the renomination of Chief Justice Stuart Rabner.
Christie's action resolves a question that had concerned the state's legal community, but, some say, does not negate the need for a constitutional amendment that would basically give judges lifetime tenure on appointment to ensure the continued independence of the state's judiciary.
The governor,with Rabner, Superior Court Judge Lee Solomon, the GOP nominee, and Senate President Stephen Sweeney (D-Gloucester) said he would not oppose such an amendment. Until then, however, he said the state constitution gives him full discretion over judicial renominations, a power he has exercised and will continue to exercise.
"I embrace the constitution, not some revisionist history of the constitution some people want to put forward," said Christie, asserting that the constitution gives the governor the power to renominate judges without any restrictions and without even having to give a reason for his decision to nominate or not. "I reserve the right to exercise my authority."
There was speculation that Christie might not renominate Rabner when his initial seven-year term expired at the end of June for a number of reasons: a continuing battle with Democrats over the makeup of the court, Christie's vow to remake the court more to his political leanings, and his vocal disagreement with some of the court's recent decisions.
Christie is the first governor since the modern constitution to not renominate a sitting Supreme Court justice, and he passed on two justices. This prompted the New Jersey State Bar Association to create a Task Force on Judicial Independence, which is holding hearings and expects to make recommendations for reform soon.
Christie dismissed that effort, and the bar association, saying there is no threat to judicial independence in New Jersey. "This judicial independence thing is a crock; it's a complete crock and the bar association knows it," he said. "I haven't cared what the bar association has said since I became a lawyer in 1987 . . . The sainted New Jersey State Bar Association? Really?"
A spokeswoman for the association did not comment on the governor's characterization of the group, but did issue a statement praising the renomination of Rabner.
"This is a resounding victory for judicial independence," said Paris P. Eliades, NJSBA president. "We laud today's renomination of the chief justice and the nomination of another justice to the court."
Several former judges and lawyers have criticized Christie for his vocal complaints about a number of judicial rulings as creating a climate that has made many untenured judges fearful for their jobs. But Christie said it is both his right and his duty to talk about court rulings.
“I have expressed very clearly my disagreements with this court and I have expressed very clearly at times disagreements that I’ve had with individual opinions of the court and I’ll continue to do so,” he said, “because I believe I have a first amendment right to do it and I think I have an obligation to do it as governor of New Jersey when I believe that my opinions need to be expressed to explain what public policy is all about and the impact the court has on public policy.”
Sweeney, who cut the deal with the governor to allow Rabner to stay on the court with the nomination of Solomon, said the agreement was important in breaking a stalemate that has had the court operating at less than its full complement of seven justices and in maintaining its impartiality.
"Today's announcement helps avert a constitutional crisis that had been brewing for some time," he said. "Most importantly, however, it allows us to maintain an independent court; one whose decisions and focus isn't driven by the ideology of any one man or woman, but continues to represent the diverse beliefs of the state as a whole."
Sweeney and Christie have battled over the governor's nominations following Christie's decision in 2010 not to renominate Justice John Wallace for tenure. The court has always had a balance between the parties of 4-3 Democratic or Republican, and Sweeney and other Democrats in the Senate said they would not support an effort by the governor to skew that balance in his favor.
Arguably, if the Senate confirms Rabner and Solomon, the court could shift to the right. Solomon and the two other justices Christie appointed -- Anne Patterson and Faustino Fernandez-Vina -- are Republicans. Justice Jaynee LaVecchia, technically an independent, served in the administration of Republican Gov. Christie Whitman. Rabner and Barry Albin are Democrats. The seventh seat will be filled by Appellate Judge Mary Catherine Cuff, a Democrat who has been called up due to the vacancy. Christie said he has no immediate plans to try to fill that vacancy.
Sweeney was reportedly more concerned about ensuring that Rabner remain as chief justice than in trying to maintain a 4-3 split in favor of Democrats. He said in a statement that the compromise "will help create a better New Jersey moving forward, not because it means the protection of progressive causes, but because it means preserving the faith and belief that our courts act independent of political pressure."
Some court observers said it's not clear that the court, known for opinions that have protected the rights of minorities and the underprivileged, will rule much differently than it has in the past. LaVecchia is considered a centrist who has ruled against Christie on several issues, including those involving affordable housing.
"I think the partisan labels attached to the justices of the New Jersey Supreme Court are a deeply flawed way to view where they are going to come out on the issues of our day," said attorney Lawrence Lustberg of the Newark-based law firm Gibson PC. "These nominees are not likely to change the direction of the court to any substantial degree."Lustberg said Rabner has done a "superb" job and his renomination "says a lot about the continued independence of the judiciary." He called Solomon "a man of integrity" and said he thinks the former state Assemblyman has what it takes to be "a fine jurist."
Sen. Majority Leader Loretta Weinberg (D-Bergen) said giving Rabner tenure will maintain balance on the court.
“The renomination of Chief Justice Rabner is an important victory that will help protect the independence and integrity of the state’s highest court and preserve its partisan balance,” she said. “We fought for this agreement because we believed we had to prevent the governor from imposing his ideological and political will on a Court long respected for its brave, legally sound decisions.”
Christie, who has criticized the court as being too liberal and activist, said he has made his mark on it.
“You will see three new justices on the court nominated by me and confirmed by the Senate, I think that’s a significant change,” he said.
Retired Supreme Court Justice Gary Stein applauded the compromise to resolve what he called a "crisis" but said it does not negate what he sees as a need for the state to amend the constitution to give sitting justices automatic tenure following an initial seven-year term unless they are deemed unfit for service.
"There is a disconnect between what the constitution said and what the framers meant," said Stein, who first proposed the amendment that received the support of the NJSBA, 20 of the 21 county bar associations, a number of specialty bars and law school alumni groups. "I think there is a significant need for an amendment that makes crystal clear the intent of the framers that justices and judges should be renominated unless they demonstrate unfitness."
He noted that Christie made clear at his press conference that he alone has the power over nominations.
"The governor can choose to not renominate a judge for any reason at all; that's not healthy," Stein said. "The Legislature ought to take a hard look at this and recognize there is a problem . . . This is a great time to do it, now that it's right on the table in front of everyone."
Like Stein, Eric Lesh, fair courts project manager for Lambda Legal, which supports equal rights for gays and lesbians, was pleased with Rabner’s renomination but worried about the future for other judges in New Jersey.
”While it is good Gov. Christie has not taken the unprecedented step to reject the renomination of the Chief Justice, we remain concerned about the politicization of the judicial confirmation and retention process,” said Lesh. “Whether it's the freedom to marry, affordable housing, or equality in education, the people of New Jersey need to trust that the courts will safeguard their constitutional rights. We do not want judges looking over their shoulders to make sure they aren't deciding a case in a way that is at odds with a governor's political agenda."
Lifetime tenure would erase that fear and Stein noted Christie said he would not oppose giving state judges lifetime tenure.
"If the people want lifetime tenure like the federal system, I am not opposed to that," Christie said. "I think that's worked in the main in the federal model and I think it could work here."
But that would likely mean a longer confirmation process with greater scrutiny, since it would be the only chance legislators would get to decide whether to allow someone a lifetime of service on the bench.
In announcing his renomination of Rabner, Christie said he considers Rabner, with whom he worked at the U.S. Attorney's Office, a friend and said that while he has disagreed with some of his rulings, "my respect for him has never been diminished."
Yet he drew Christie’s ire last July when he wrote the court’s opinion overturning the governor’s plan to abolish the state Council on Affordable Housing. At the time, Christie said, “The Chief Justice's activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers. This only steels my determination to continue to fight to bring common sense back to New Jersey's judiciary.”
Rabner also led the unanimous court that refused to stop a lower court ruling that ordered same-sex marriages go forward in the state. Christie had vetoed a bill that would have allowed gay marriage.
Rabner said he was grateful for the opportunity to continue to serve the public by returning to the court "I care so deeply about." He is a former state attorney general and served as chief counsel to Gov. Jon Corzine before Corzine nominated him to the court.
Solomon is the current Assignment Judge in Camden County. He has a close relationship with the governor, having been appointed by him first to head the state Board of Public Utilities -- the governor has since given that job to Solomon’s wife -- and then to the Superior Court, where he had been a judge prior to Christie’s naming him to head the BPU. He has also served as a deputy U.S. Attorney and Camden County prosecutor, as well as five years in the Assembly. After Christie announced his nomination, Solomon said he would “work very, very hard” as a justice and looked forward to the opportunity to serve.
“Judge Solomon will bring to the Court unquestioned qualifications, a depth of experience in public service, and knowledge in policy matters touching on issues across the state,” Christie said in announcing his nomination. ”I have known Lee for many years as a person of integrity who is universally well respected for his independence and temperament throughout his long history of serving the people of our state.”