Now it’s Christie’s turn to remake the N.J. Supreme Court

BY CARL GOLDEN

NEWJERSEYNEWSROOM.COM

COMMENTARY

While all attention is focused on the confrontation between Gov. Chris Christie and the Democratically-controlled Legislature over the proposed state budget, a less visible issue is playing itself out in the background, one which could have precedent-breaking and far reaching implications for the Executive and Judicial branches of government.

On May 20, the initial seven-year term of Supreme Court Associate Justice John Wallace of Gloucester County will expire, presenting the Governor with the opportunity to deal with what is arguably the most important nomination within the Governor's authority — a seat on the state's highest court. If nominated and confirmed, Wallace will receive tenure, although he will reach the mandatory retirement age of 70 in two years.

Christie has been a critic of the court — although not of Wallace specifically — and there is growing pressure on him to deny Wallace re-nomination, primarily from those who feel the court has too often overstepped its authority and usurped the Constitutional prerogatives of the Legislature.

Accusations that the court is guilty of legislating from the bench are not new, of course, but have taken on added weight as a result of growing discontent with the court's opinions, in particular those ordering vastly increased funding for urban school districts; requiring every municipality to include affordable housing components in local zoning ordinances, and in 2002 allowing Frank Lautenberg to run as a last minute substitution on the ballot, a decision which arguably cost Republicans a seat in the U. S. Senate.

Denying Wallace re-nomination would be largely symbolic since he reaches retirement age in 2012, giving Christie the opportunity to fill the open seat then. To the court's critics, however, the symbolism involved is crucial since it is an unmistakable signal that the elected branches of government — the Executive and Legislative — have had enough judicial activism and are willing to curb the court's power.

There is concern that replacing justices based on the prevailing political environment will destroy the state's long tradition of judicial independence, the established principle that courts can maintain public confidence only if judges are free from political interference and have the unfettered ability to rule on the merits of cases without fear of political retribution. It is a recognition that judicial opinions may often be unpopular but if embedded firmly in Constitutional imperatives, there is a clear benefit to society in the long run.

The Governor now must choose between these competing interests. As an attorney, he recognizes the need for an independent judiciary and is sensitive to the value of preserving that tradition.

He is, at the same time, a political leader who must take into consideration the strongly held beliefs of those who feel the court has too often ignored the will of the people as expressed through their elected representatives.

The expiration of Wallace's term has become a point of convergence where the philosophy of judicial independence meets the belief that the courts — while independent — must exercise greater restraint when dealing with issues of enormous economic and social impact.

Any Governor possesses the ability to remake the court and, given the four impending retirements and first term expirations, Christie will have the opportunity to alter a majority.

The term of Justice Roberto Rivera-Soto expires in 2011 and that of Justice Helen Hoens in 2013. Justice Virginia Long will reach retirement age in 2012, as will Justice Wallace.

Despite occasional suggestions to amend the Constitution to provide an elected judiciary, rather than gubernatorial nominations, the state has maintained the current system.

And, while there have been controversies and frequent expressions of displeasure over some nominees, there has never been an instance in which a sitting Supreme Court Justice has been denied re-nomination.

Christie's decision will be a political/ethnic one as well. Wallace is the only African-American on the court and, should the Governor decide to replace him, there will be an expectation that an African-American will be selected as his successor. In addition, Wallace is supported by Senate President Steve Sweeney, whose cooperation Christie needs to advance his legislative agenda.

Students of history point out that even in the face of controversy and uproar, people believe that the court system should remain immune from politics. They recount the attempt by President Franklin Roosevelt in 1937 when, angry over the Supreme Court's decisions overturning a number of his legislative programs, he attempted to expand the Court and appoint six additional justices friendlier to his Administration.

The backlash over his heavy-handed interference was so immediate and so great that his plan collapsed, dealing him a major political defeat.

The issue facing Christie obviously is not of such magnitude, but his ultimate decision will be scrutinized, debated and dissected to determine whether he successfully negotiated the fine line between an independent judiciary and a politicized one.

Carl Golden served as press secretary to Govs. Kean and Whitman and is a senior contributing analyst with the William J. Hughes Center for Public Policy at Stockton College.