Monday, July 15, 2013

Gov. Christie poised to reject tenure for Chief Justice

The standoff between the Democratic state Senate and Chris Christie, the often combative Governor of New Jersey, has taken on a new intensity.  The state's Supreme Court, in an opinion by the un-tenured Chief Justice, Stuart Rabner, declared 5-2 that the Governor could not by executive order abolish the legislatively created Council on Affordable Housing.  COAH is an independent agency which enforces the Court's landmark Mt. Laurel principles - mandating that developing  towns make provision for affordable housing.

Christie has found little support in the bar - but that has not deterred him from his oft-declared intention to remake New Jersey's courts whose long progressive record has often infuriated conservatives.  Christie, like many suburban Republicans, resents the open housing mandate which overrides local zoning restrictions.   Shortly after taking office in 2009 Christie broke the sixty year old consensus that all sitting judges will be granted tenure after their seven year initial term, unless their behaviour is problematic in some way.  Introducing ideology as a factor in reappointment produced an uproar in the bar, and the Democrat-dominated Legislature.  
Only one of Christie's five Supreme Court nominees has been confirmed.  Two were rejected and two are in limbo as the Democrats say they will hold hearings only after the November elections.  The June expiration of the term of the Chief Justice will then be on the agenda.  In over sixty years no sitting Chief Justice has been denied tenure.  So it is an ominous sign that in their weekly dialog former Governor Thomas Kean, a moderate Republican, has lambasted the court's decision as "radical", while Democratic former Governor Brendan Byrne finds the court's decision an affirmation of current law.

Among the Governor's most persistent critics is the Editorial Board of the New Jersey Law Journal.  They declared in this week's edition:
In a majority opinion authored by Chief Justice Stuart Rabner, the New Jersey Supreme Court held 5-2 that the governor lacked authority under the Reorganization Act to abolish the Council on Affordable Housing. The issue was one of statutory construction, with the majority finding that independent agencies such as COAH, created "in but not of" a principal department of the executive branch, may not be abolished under the Reorganization Act as it is currently constituted.
But the real news here is Gov. Chris Christie's continuing war on judicial independence, and his determination to replace judges who render decisions he disagrees with. In reaction to the COAH decision, the governor stated: "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."
Since the chief justice lacks tenure, and his term expires next year, this statement can only be viewed as a not so thinly veiled threat that he will not be reappointed. Before this administration, such a statement would have been considered shocking. No more.
This regrettable state of affairs is a new low for judicial independence in New Jersey.

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