Saturday, May 8, 2010

NJ Law Journal Editorial Bd: Gov. Christie's assault on judicial independence

Images: Assoc. Justice John Wallace, Gov. Christie and Anne Patterson; Sen. President Steve Sweeney
Since 1947 when the current New Jersey Constitution was adopted no Governor has refused to move the confirmation for tenure of a sitting Supreme Court justice, at expiration of the initial 7 year term.  Christopher Christie rejected that tradition when he refused to submit for confirmation after a competent first term Associate Justice John Wallace.  The centrist Democrat, the high court's only African-American, was said by the Governor to believe in "judicial legislation".  That is New Jersey code for support of Abbott v. Burke - a thirty year judicial effort to establish rough equivalence in funding of urban and suburban schools, and the Mt. Laurel decisions which mandated local zoning provide for moderate and low income housing.
The Democratic Senate majority in Trenton has said it will not act on the Governor's nominee for 22 months - until the expiration of Wallace's term when he would have reached the state's mandatory retirement age of 70.  The Law Journal Editorial Board has denounced the Governor's action as a grave threat to the independence of the entire state judiciary, and has commended the Senate's stance. - GWC
Update: 8 retired NJ Supreme Court Justiices have joined the fray.  Their statement is HERE.

Judicial Independence

May 7, 2010
"[I]t is only fair that any new [judicial] appointments under this new constitution shall go through the trial period of one term. If they are qualified they have no fear of not being re-appointed." 
Excerpted statement by state Sen. Frank "Hap" Farley in support of the successful amendment to the judiciary article at New Jersey's 1947 Constitutional Convention, providing that supreme court justices, like lower court judges, be appointed for a seven-year term subject to reappointment and tenure. Vol. 1, page 587 of the Proceedings.

The drafters of New Jersey's 1947 constitution intended to create a powerful, independent judiciary, free to interpret the law using its best judgment without regard to political considerations of the moment. This judicial independence bolsters protections for individual rights and acts as a check on the worst impulses of democracy. Defending that independence against political attacks has been the guiding editorial principle for this Law Journal Editorial Board since 1947.
In refusing to reappoint Supreme Court Justice John Wallace Jr. — a moderate Democrat and the only African-American on the Court — for the 22 months remaining before his constitutionally mandated retirement, Gov. Chris Christie has erroneously claimed a mandate to end 63 years of bipartisan tradition intended by the constitution's framers, simply because he disagrees with the substance of some of the Court's decisions. None of those decisions have been identified by the governor as those in which Justice Wallace participated.
We believe that the governor's action is a radical and unprecedented assault on judicial independence. It sets a precedent that will allow governors of both parties eventually to reduce the Court to a body of temporary appointees with membership fluctuating in accord with the political cycle. We urged him not to take this step, and we condemn it unconditionally.
This is not about Anne Patterson, the woman named to replace Justice Wallace, who by all accounts is well regarded as a smart, seasoned, professional and collegial lawyer. But one has to wonder what was going through her mind standing by the governor's side at that special moment of having her nomination announced, only to hear him deliver a searing broadside directed at the same Supreme Court that he would have her sit on and its "out of control" liberal bias.
Why the governor's vitriol? To a vocal segment of the right, the idea of a politically independent Supreme Court interpreting the constitution is downright pernicious. They want to purge the courts with two primary goals: ending the transfer of suburban taxes to urban school districts and establishing the power to zone out lower-income residents. By denying Justice Wallace permanent appointment, the governor has not only catered to his base, he has declared that all nontenured judges are subject to an ideological screening by the party in power. In so doing, he has set a precedent that will have disastrous consequences long after the political wheel has turned again. Unless this action is somehow reversed, our courts will be reconstituted after every election, and their independence, their integrity and their prestige will be swamped by politics.
No one is begrudging the governor's right to appoint his choices to the Court. But there is a right way and a wrong way to go about it, and the governor rushed to choose the wrong way. His decision to stand at a press conference with his nominee in tow and declare war on the Court was a sad and arrogant display of ideological bullying. Those who expected some degree of moderation because former Republican Gov. Tom Kean is one of Christie's mentors were apparently deluding themselves; Kean stood up to his own party to reappoint Chief Justice Robert Wilentz despite his liberal bent because that's what every governor had done since the 1947 constitution: reappoint justices even if they disagree with them philosophically in order to maintain judicial independence.
The framers of our constitution understood and discussed that very point in approving the judiciary article, Art. VI. As Essex County chairman and later the first Chief Justice Arthur Vanderbilt wrote at the time, the seven-year initial term provides "assurance of the appointee's fitness for a life appointment." It is undisputed that Justice Wallace, who was initially appointed by Gov. Kean to the Superior Court in 1984, reappointed for tenure by Democratic Gov. Florio in 1991, elevated to the Appellate Division by Chief Justice Wilentz in 1992 and appointed to the Supreme Court by Democrat James McGreevy in 2003, is so qualified.
We are not fooling ourselves. It's not as if political appointments to all levels of our bench are not commonplace and often regrettably lacking in caliber. However, our Supreme Court has largely been different. Appointments have been practicing lawyers, gubernatorial advisors, government officials, attorneys general and judges, most liberal, some moderate and conservative, most very bright and some very exceptional. But why would any lawyer of quality abandon a presumably successful law career for a Supreme Court judgeship whose longevity depends on the political wind blowing seven years hence?
Gov. Christie's decision was not only about him making his own political appointment or even changing the Supreme Court's ideology. He knows full well that he will have four chances to name his own people to the seven-member court. We believe that this nomination was meant as a warning to every nontenured judge in the system, telling him or her that they had better take care how they decide cases because under this governor, their ideology will be examined before reappointment. Faced with such a startling and disturbing message, it was important that our normally reticent Chief Justice Stuart Rabner reacted publicly as he did immediately afterwards in a statement expressing disappointment in the governor's decision:
"Citizens who turn to the courts for relief are entitled to have their cases resolved by impartial judges who focus only on the evenhanded pursuit of justice; litigants should never have to worry that a judge may be more concerned about how a decision could affect his or her reappointment."
We as the members of this Board can say even more forcefully than the Chief Justice that the governor's action was wrongheaded and dangerous, and so should lawyers throughout this state. We have opined recently, along with Governor Kean and others, that Gov. Christie should avoid this path to confrontation. Regrettably, the governor acknowledged at his press conference that he did not care what anyone else thought on this subject, and like other issues he has addressed in his short tenure, he is willing to make his point regardless of cost, including his placement of Anne Patterson's career in the middle of this constitutional and ideological struggle.
In light of the potential for irreversible damage to our judicial system, we applaud the leaders of the state Senate for taking the extraordinary step of declaring that they will not act upon the nomination for the remaining 22 months of Justice Wallace's eligibility to serve. We can only hope that the Senate can engage the governor in some meaningful return to past traditions as anticipated by our constitution's framers, or we will have nothing but an ugly future to look forward to for our judiciary.

This editorial was published in the May 7, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.

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