Monday, June 3, 2013

NJ Supreme Court Standoff: Democrats don't budge on Christie nominees as two more vacancies loom

New Jersey's famously combative Governor Chris Christie, and the state's Democratic legislative majority continue their standoff.  Despite two vacancies on the state's high court the Senate President Stephen Sweeney refuses to schedule hearings on the Governor's two nominees.

The battle began when Christie broke a fifty year tradition when on ideological grounds he refused to nominate for tenure John Wallace - who was two years from the constitutional retirement age of seventy. In the coming year two more justices initial terms end - one is the Chief Justice Stuart Rabner.
The New Jersey Law Journal editorial board this week strongly backed Associate Justice Barry Albin's `call to arms'  to the bar to support judicial independence: here the tradition of non-political renomination.  

In a second piece 'Two wrongs..."  the Board criticizes the Senate Democrats' refusal to schedule hearings for the two vacancies on the court, which are filled by temporary assignment of the most senior Appellate Division judges. The editorial asks rhetorically

So why is Senate president Steve Sweeney saying we should wait until after the November elections? Perhaps some who support Sweeney's strategy claim that since Christie has essentially declared his intention to reshape the court, to undo such judicial decisions as the Abbott v. Burke school funding ruling, the confirmation process has become just another part of the ideological battle, as it has long been in Washington.
For fifty years - since the landmark product liability case Henningsen v. Bloomfield Motors, the New Jersey  Supreme Court and judiciary have operated in a center-left milieu.  Christie vowed to break that egg.  I am among those who take him at his word.

Senate President Sweeney has said they will address the pending Hanna and Baumann nominations after the November elections: when both he and Christie will presumably remain in place.  Looming then will be expiration of the seven year term of Chief Justice Stuart Rabner, a moderate Democrat.   Christie's decision then: to nominate the Rabner for tenure or not will be the overriding issue.  

Stuart Rabner
Helen Hoens
In his presumptive two terms Chris Christie will have the chance top name five members of the state's Supreme Court - transforming its jurisprudence to his liking.  His next opportunity comes in October - the term expiration of Helen Hoens, a generally conservative voice on the court.  
Next June Chief Justice Rabner's probationary term expires.  No Chief Justice has been denied tenure since the current court was created by the New Jersey Constitution of 1949, an event that in modern New Jersey political-legal history has assumed mythic proportions.  
No choice Christie faces will be more consequential for his state than the Rabner decision.  That will determine the direction of New Jersey law and politics for a generation. (Rabner is seventeen years from retirement age.)  And it will be a critical moment for Christie, who must choose between his Bruce Springsteen angel and his Tea party sirens.  His predecessors - Thomas Kean and Christine Whitman shared Republican antipathy for higher taxes but otherwise broke little glass.

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