In N.J., bench battle drags on
The battle in Washington over late U.S. Supreme Court Justice Antonin Scalia's seat is a month in the making. But in New Jersey, a political stalemate over an open state Supreme Court seat has stretched six years.
The battle in Washington over late U.S. Supreme Court Justice Antonin Scalia's seat is a month in the making. But in New Jersey, a political stalemate over an open state Supreme Court seat has stretched six years.
"No other states come close," said Bill Raftery, an analyst with the National Center for State Courts in Williamsburg, Va. "Most other states, there would have been some mechanism to fill it by now."
In many states, including Pennsylvania, justices are elected. In others, they are put forward by nominating commissions.
In Tennessee and Kansas, a governor's nominations to certain appellate-level courts are automatically confirmed if lawmakers don't act within a specified time frame.
Not so in New Jersey, where Gov. Christie and Senate President Stephen Sweeney (D., Gloucester) are again sparring over the seventh Supreme Court seat.
The dispute over the court's political composition was revived with Christie's recent renomination of Judge David Bauman - a fellow Republican - to the seat, which has been filled over the years by appellate division judges called up by the chief justice.
Sweeney is refusing to give Bauman a confirmation hearing, framing his opposition as a vow to stop Christie from stacking the court.
Christie says Bauman, a state Superior Court judge in Monmouth County who was unanimously confirmed for tenure last year by the Senate, would be the fourth Republican on the court - preserving New Jersey's long tradition of not having more than four justices from the same party on the seven-member panel.
Sweeney, however, argues that Justice Jaynee LaVecchia, an independent, should be considered a Republican, in part due to her nomination by former Republican Gov. Christie Whitman.
The political back-and-forth began in 2010 after Christie took the unprecedented step of declining to renominate a sitting justice. Since then, the Senate has blocked a number of his choices.
An appellate division judge, Mary Catherine Cuff, has been temporarily assigned to the court since 2012 by Chief Justice Stuart Rabner.
Cuff's role is no different from that of the six justices, a court spokeswoman said. Since 2012, she has authored 35 majority opinions and four dissents.
"When you start counting the votes you need, . . . you think of her as any other justice," said Lawrence Lustberg, a defense lawyer who frequently argues cases before the court.
The senior-most judges in the pool to fill Supreme Court seats tend to be "qualified to have been on the court in the first place," Lustberg said. He noted that senior judges could be from either political party. Cuff is a Democrat.
The court affirmed the chief justice's authority to call up temporary judges in 2010, in response to former Justice Roberto Rivera-Soto's abstention from an opinion authored by a temporarily assigned judge. He argued that judges could be assigned only temporarily to make a quorum, not to fill the court.
In an opinion concurring with the majority, Rabner wrote that the framers of the state constitution had "rejected draft constitutions that would have limited temporary assignments in that manner."
To meet the needs of parties before the court "fairly and expeditiously, the assignment of a judge to serve temporarily on the Supreme Court is necessary," Rabner wrote.
If a temporary judge is involved in a precedent-setting decision, "someone might just argue it's entitled to slightly less weight," said Robert Williams, a Rutgers Law School professor who specializes in state constitutional law. But "I don't think the court would accept that."
In May, the seat held by former Justice John Wallace, whom Christie declined to renominate for tenure in 2010, will have been open for six years - the longest vacancy in modern history.
In rejecting Wallace, Christie said he had "expressed over and over again my significant concern regarding the direction of the Supreme Court over the last nearly 30 years," accusing it of having "inappropriately encroached" on the other two branches of government.
He pledged to "bring back an appropriate constitutional balance to the court."
While Christie's refusal to renominate Wallace led the Senate to block some of his nominees, three - all Republicans - were confirmed. The most recent, Lee Solomon, joined the bench in 2014 - part of a deal with Sweeney that also involved Christie renominating Rabner, a Democrat, for tenure.
"There's been a shift. But I wouldn't attribute that to anything other than we have a different governor," said Ronald Chen, a dean of Rutgers Law School.
Several legal observers said the court had moved right on criminal issues.
But outcomes in other areas have been mixed: The court sided with the Christie administration last year in a case filed by public worker unions, affirming Christie's authority to cut state contributions into the public employee pension system.
It ruled against the administration last year in a battle over the Council on Affordable Housing, transferring the authority for enforcing affordable housing mandates - which Christie has opposed - to lower courts.
The court also cleared the way for gay marriage in New Jersey in 2013 in refusing the administration's attempt to delay same-sex marriages during appeal.
That is "a fairly balanced set of results," Chen said.
"The court tries to find consensus when it possibly can," Chen said, noting that narrow decisions were "much rarer on the New Jersey Supreme Court than the U.S. Supreme Court."
While the court has functioned without seven confirmed justices, "it's not functioning as the framers of the 1947 Constitution envisioned," said Miles Winder, president of the New Jersey State Bar Association.
"It really is important for the governor to do his job, and the Senate to do its job," Winder said. New Jerseyans deserve a "fully functioning, constitutionally constituted Supreme Court."
New Jersey hasn't experienced what some see as a threat to judicial independence in other states: "a flood of special-interest money" pouring in to state Supreme Court races, said Alicia Bannon, senior counsel for the Democracy Program at the Brennan Center for Justice at New York University School of Law.
But "partisanship can also operate in harmful ways in states that use appointments," Bannon said. She noted that politics "is always going to be a part of judicial selection."
The question is, "can it be contained . . . without interfering with judicial independence."
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