Conservatives have long blamed the New Jersey Supreme Court for making a mess of some of the state's most vexing issues, from affordable housing to public school funding.
Now those same conservatives are calling for Gov. Christie, a Republican, to start overhauling the court by replacing Justice John E. Wallace Jr. instead of renominating him when his first term ends May 20.
By all accounts, Christie appears to be seriously considering the move, which would upend decades of tradition: Under the state constitution, which dates to 1947, no Supreme Court justice has ever failed to be reappointed for tenure.
Christie will have the opportunity to replace at least four of the seven justices in his first term. Those decisions could have more of an impact on the state than anything else he does as governor.
"In the next three years, Christie can really reshape the nature of the Supreme Court," said Joseph Marbach, a political analyst at Seton Hall University.
Wallace, a Gloucester County Democrat, is also the court's only African American justice, so if Christie doesn't renominate him, the governor could feel pressure to replace him with another African American. Wallace, who was appointed by Democratic Gov. Jim McGreevey in 2003, declined to comment.
Even if reappointed, Wallace will face mandatory retirement in two years when he turns 70, which means Christie will get to choose his replacement anyway.
But conservatives are clamoring for Christie to seize the moment.
"He needs to send a message to the court now that he's going to restructure the majority to be a majority that believes in judicial restraint as opposed to activism," said former Assemblyman Richard Merkt, a Republican from Morris County. "Reappointing Wallace would send the message he was happy with the status quo. . . . He cannot afford to make that mistake."
Sen. Gerald Cardinale (R., Bergen), who sits on the Judiciary Committee, called Wallace a nice person and said he held no grudges against him.
But he said Wallace also was part of the liberal wing of the court, which Cardinale said "ran wild and decided to rewrite the Constitution, not to interpret the Constitution."
If Christie wants to reappoint Wallace, he will need to move quickly for the required approval by the Senate Judiciary Committee and full Senate before May 20. Under the constitution, the governor must give the Senate seven days' public notice of nominations to the Supreme Court.
Christie has not said what he will do on the reappointment.
"It's premature for us to discuss the renomination at this time," said his spokesman Michael Drewniak. "Those are the kinds of things we'll speak to probably not until we actually say yea or nay."
On the campaign trail last year, Christie didn't mince words when asked what he would look for in a state justice.
"I want someone who is extraordinarily bright, and I want someone who will interpret laws and the Constitution, not legislate from the bench," Christie told the Star-Ledger of Newark.
More recently, he told the Asbury Park Press that he "did not subscribe to the theory that people once appointed must be reappointed."
"I know that's the way it's been in the state, but I don't think we set up the constitution with a method where the executive has to reappoint after seven years before tenure attaches just for fun. I think we did it because they want you to make an evaluation and a judgment."
Christie's views appear to align with Wallace's on the appropriate role of a judge. When asked during the Senate Judiciary Committee hearing on his appointment to the Supreme Court about his views on the death penalty, Wallace said he had no philosophy on the issue.
"I'm prepared to follow the law as the law has been upheld in the past. . . . When I get involved with a court decision, I put aside my personal belief and apply the law," Wallace said.
But Cardinale and Merkt are among those who say Wallace has consistently voted with what they see as an activist Supreme Court. Merkt said Wallace was "thoroughly credentialed as an activist judge," citing his vote in Lewis v. Harris, the 2006 case that led to civil unions in New Jersey.
Conservatives have long railed against what they say are judges legislating from the bench, creating the law, in their view, when they should be interpreting it.
Among the Supreme Court decisions conservatives often criticize are Abbott v. Burke, which guaranteed generous public funding to the state's neediest schools, and Southern Burlington County NAACP v. Township of Mount Laurel, which led to rules meant to ensure affordable housing throughout the state, and their succeeding rulings.
Wallace's supporters are gearing up for a fight.
Senate President Stephen M. Sweeney (D., Gloucester) called Wallace one of the most qualified justices.
"If he's qualified and he gets removed, it's based on ideological views," Sweeney said. "It's never been that way here."
Sen. Raymond Lesniak (D., Union), a member of the Judiciary Committee, said Christie would face strong opposition if he did not reappoint Wallace.
"If Justice Wallace were not reappointed, anyone to be appointed in his place would stand a snowball's chance in hell to be appointed by the Senate Judiciary Committee," Lesniak said.
Phillip S. Warner Sr., the South Jersey coordinator for the state conference of the NAACP, said Wallace had proved to be a capable judge.
If Christie "denies him tenure, he certainly has to justify that opinion," Warner said. "It's been the opinion of most of the lawyers I've associated with that Judge Wallace is an outstanding judge."
Another supporter, James H. Coleman Jr., the first African American on the state Supreme Court, said Wallace had been outstanding.
Coleman, who served from 1994 to 2003, said that when he was on the court, the justices never thought they were legislating.
"We always thought we were interpreting the law," he said.
Robert Williams, a professor at the Rutgers University School of Law in Camden who follows the state Supreme Court, said it had a sterling national reputation.
Even people who don't like all of the court's decisions, Williams said, are "grudgingly proud that we have among the best, certainly top three or five, Supreme Courts in the country" for the last 50 years.
Williams attributed that, in part, to various unwritten rules, including that governors renominate justices and that the court never have more than four justices from one party. (The current bench consists of four Democrats, two Republicans, and one independent.)
"It has worked pretty darned well over the years but almost because of these non-written understandings rather than anything in the law," Williams said.
He cited Gov. Tom Kean, a Republican, who renominated Chief Justice Robert Wilentz, a Democrat, in 1986 despite their differences of opinion.
"I disagree with him half the time, too, but he's not there to agree with me," Kean said, according to an account by Carl Golden, his press secretary. "He's there to uphold the constitution."
In 2004, Justice Peter Verniero resigned before his first term ended, citing financial reasons. But his term had been controversial from the start, and many believed he resigned to avoid a renomination process that was expected to be contentious.
Williams said he had never heard anyone criticize Wallace's judicial craft or qualifications. (A graduate of the Harvard Law School, Wallace served as an appellate judge, as a Superior Court judge for nearly two decades, and as a municipal judge in Washington Township before joining the Supreme Court.)
Williams said that if Christie did not renominate Wallace, he would not necessarily attribute the decision to politics.
Still, Williams said, a lot is at stake for the state. If people believe the decision to renominate a judge is political, he said, "it might lead very well qualified people to turn down nominations to the court, which wouldn't be good."
"It might affect the court's own decisions if justices have to be looking over their shoulder while they're on probation."
Cardinale, however, said Christie should not worry about ending traditions.
"Christie was elected to correct the problems, to break with traditions of the past," he said.
Justices are appointed by governors, with Senate consent, to a seven-year term. At the end of the term, justices may be reappointed for "tenure," which allows them to serve until the mandatory retirement age of 70.
Like Justice John E. Wallace Jr. this year, Justice Roberto Rivera-Soto will be up for reappointment in 2011. Justice Virginia Long will reach retirement age in 2012, and Justice Helen Hoens will be up for reappointment in 2013.
According to the state constitution, Supreme Court nominees must have been admitted to practice law in New Jersey for at least 10 years.
For a time, the court was known as "Christie's court" because Gov. Christie Whitman appointed six justices.
- Adrienne Lu