Each side accuses the other of playing politics
A series of moves by Gov. Chris Christie and Senate President Stephen Sweeney has taken the New Jersey Supreme Court to a new level of politicization, some say. TRENTON — By the time delegates gathered to rewrite New Jersey’s constitution after World War II, the state’s court system was in a rut, considered by some the worst part of an already troubled government.
"New Jersey courts have changed relatively little since the time of George III, and the intricate judicial system is puzzling to the lawyer as well as to the layman," read one description published in 1939.
The state emerged from the constitutional convention in 1947 with an entirely new, streamlined court system. At its pinnacle is the New Jersey Supreme Court, which became nationally recognized for its judicial innovation and integrity. Although its progressive rulings have been celebrated by liberals and pilloried by conservatives, the court has largely avoided being sucked into the cauldron of politics.
Until now. The court is in the midst of an unprecedented crisis, dragged into a high-stakes controversy because of a standoff between Gov. Chris Christie and Senate President Stephen Sweeney that has lasted for seven months with no end in sight.
"It’s reducing the stature of the Supreme Court in New Jersey. We’re heading in the wrong direction," Sen. Kevin O’Toole (R-Essex) said. "It’s becoming polarized and politicized."
Much like any political issue, both sides accuse the other of playing politics.
Sweeney (D-Gloucester) said Christie damaged judicial independence when he refused to renominate Justice John Wallace, the first time a governor has booted a sitting justice.
"In the history of the modern court, we have not had the politics we have now," he said.
Christie counters that it was Sweeney who politicized the situation by refusing to hold hearings on Anne Patterson, the lawyer he nominated to replace Wallace.
"The Senate has sat around and created this crisis," Christie said Thursday. "We wouldn’t be having this crisis if they would just have their hearings and do their jobs."
The controversy entered a new arena on Dec. 10, when Justice Roberto Rivera-Soto said in two opinions that the court’s current makeup is unconstitutional because a temporary justice is filling Wallace’s spot. Because the court only needs five members for a quorum, calling up a seventh justice on an interim basis was unnecessary and improper, Rivera-Soto wrote.
The legal question has technically been settled because most justices sided with Chief Justice Stuart Rabner, saying he had the legal authority to put a temporary justice on the bench. But the issue is not over: Rivera-Soto has launched a one-justice strike and is refusing to rule on cases.
Last week, a handful of Senate Democrats began pushing a resolution calling on Rivera-Soto to resign if the Assembly does not begin impeachment proceedings.
Through a spokeswoman, Rabner and Rivera-Soto declined comment.
The sharp divide on the court is another symptom of the decisions made by Christie and Sweeney in May.
Of course, politics has always been a part of the Supreme Court. Governors appoint justices with political considerations in mind, and justices make rulings that impact public policy on politically charged topics. But observers say the court has never been challenged as it is now.
"Judges try very hard to keep up this mystique that they’re fair arbiters. Once that goes away, we have severe problems, not just for one party, but for society," said Fairleigh Dickinson University survey analyst and political scientist Dan Cassino. "It could call into question the legitimacy of the Supreme Court."
Justices are appointed for seven-year terms. Afterward, they can be given tenure, allowing them to serve until the mandatory retirement age of 70. The possibility that the governor will not renominate justices whom he doesn’t agree with has raised a question mark on each decision the court reaches, said Robert Williams, a professor at Rutgers School of Law-Camden.
"Prior to the governor’s decision not to reappoint Justice Wallace, we rarely considered whether justices were tenured or untenured when we evaluated the decisions of the court," he said. "Now that’s a topic of conversation almost whenever the court decides a case."
Brigid Harrison, a political science professor at Montclair State University, said Christie’s decision has changed the relationship between the governor’s office and the state’s highest court.
"While governors have used appointment powers to further their ideological position on the court, the tradition has been for the judiciary to be apolitical," she said. "Gov. Christie, in his decision not to reappoint Justice Wallace, has politicized the court more so than it ever has in its history."
Christie rejected that notion at a recent press conference.
"All this controversy has been about nothing," he said. "No one can argue that the governor of the state of New Jersey has the absolute constitutional right to nominate justices to the Supreme Court and has no constitutional obligation to renominate a justice."
Christie, who pledged to remake the court while campaigning, said justices have overstepped their bounds in judicial opinions affecting state policy and budgets. One upcoming case involving the landmark school funding ruling Abbott v. Burke could force Christie to pump more money into public schools.
"I don’t think the Supreme Court has any business being involved in setting the budget of the state government," he said. "I think the budget should be set by two branches that are elected by the people."
Seton Hall University political scientist Joseph Marbach said Christie is simply recognizing that the Supreme Court is a political entity and has treated it as such.
"He’s embracing the reality of the situation," he said. "He says, ‘If the court is going to engage in public-policy issues, I’m going to put people on the court who agree with my public policy positions.’"
Christie will have three more opportunities to do so before his four-year term ends. Justice Virginia Long, a Democrat, will reach the mandatory retirement age of 70 in March 2012. Justice Helen Hoens’ seven-year term ends October 2013, one month before Christie faces re-election. And Rivera-Soto is up for renomination in September.