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| Prof. Ed Hartnett proposes rescue of Justice Rivera Soto |
My comments:
Associate Justice Rivera Soto believes that with a temporarily assigned judge voting the New Jersey Supreme Court is illegitimate as constituted. He refuses to participate in its judgments so long as the court sits with such a temporary justice (except if needed for a quorum). Prof. Hartnett seeks to excuse Rivera Soto's boycott of court votes by saying that U.S. Supreme Court judges Brennan and Marshall consistently refused to join in their court's rulings on certain categories of issues on which they disagreed with the majority. But they were dissenters not abstainers. And he suggests a Governor's recess appointment of stalled nominee Anne Patterson. That would vindicate Rivera Soto - who would then return to voting on cases because the temporarily assigned judge would no longer be sitting.
It would set a terrible precedent if such a guerrilla tactic as Rivera Soto's were rewarded with success.
It is the duty of a judge to decide. The parties and the people are owed the duty of adjudication.
Abstention by a judge is rarely appropriate but sometimes necessary. It is employed principally when a personal conflict may prevent the judge from upholding her duty of competent and impartial judgment: as when she has an interest in the outcome, or her physical limitations threaten her ability to render fair and competent judgment.
Justice Rivera Soto cited the example of Justice Harry Blackmun to justify his refusal to judge the cases before him. But in his passion Justice Rivera Soto failed to determine the facts. In 1976 Justice Harry Blackmun voted to allow executions to resume - in the belief that it could be fairly and consistently employed. 18 years later he had despaired of that. In Callins v. Callins he declared "From this day forward I shall no longer tinker with the machinery of death."
It would behoove Justice Rivera Soto to embrace Justice Blackmun's example. He owes a duty to conscience to dissent on issues of principle relevant to the cases before him; and to abide by the judgment of the court thereafter. The Court on which he sits or the judgment of the people may someday vindicate his view that the Chief Justice's interpretation of the New Jersey Constitution is wrong. But the remedy announced by Justice Soto "abstention" is, to use his phrase, ultra vires - outside of law and precedent. Justice Rivera Soto should without delay resume exercise of the full duties of a judge of the Supreme Court.
- GWC 12/15/10
George,
ReplyDeleteI think that you are exaggerating the differences between us, overreading my paragraph addressed to Albin, and ignoring my paragraph addressed to Rivera-Soto.
I don’t claim that Brennan, Marshall, Steven, Souter (or Blackmun) were abstainers. I describe them as “refus[ing] to accede to precedents with which they strongly disagree.” My beef with Albin is that he treats refusal to accede to precedent as contrary to the rule of law. It isn’t. And I don’t think that you really believe that it violates one’s oath of office to refuse to accede to precedent of the court on which one sits – unless you think that all of the judges above violated their oath of office.
Even Frankfurter was not an across-the-board abstainer, but rather refused to reach the merits of a particular category of cases.
You seem to miss that the whole point of my paragraph addressed to Rivera-Soto is to urge him not to abstain but to engage the rest of the case as well, stating that “Judges have commonly reiterated their adherence to views rejected by the majority, but nevertheless gone on to engage the rest of the case as well.” I had thought it was sufficiently clear that the judges referred to in the paragraph addressed to Rivera-Soto were the same ones as the ones described in the paragraph addressed to Albin – that is judges like Brennan, Marshall, Stevens, and Souter who refused to accede to precedents with which they strongly disagreed but nevertheless gone on to engage the rest of the case as well. I guess I wasn’t as clear as I had hoped.
And the Op-Ed stops short of urging Christie to recess appoint Patterson – or even to make a recess appointment of anyone. One possible way out of this mess is to recess appoint someone that Sweeney likes – including Ed Stern, perhaps as part of a broader deal. The overall message of the Op-Ed is to urge people to work together more cooperatively. As Presidents have long learned, the possibility of a recess appointment (like the possibility of a veto with regard to legislation) can be a tool to bring about an accommodation without ever making the recess appointment or vetoing legislation.
Ed Hartnett