The case for Fernandez-Vina

Democrats are quietly rejoicing after last week’s surprise nomination of Faustino Fernandez-Vina to replace Justice Helen Hoens on the state Supreme Court.

Gov. Chris Christie announced the move in response to comments made by state Sen. Ray Lesniak that Hoens, who was up for reappointment next month, might be collateral damage of the ongoing fight over the judiciary.

But while some Democrats grumbled early about the politicization of the court, behind the scenes the party is calling it a “win-win.”

Democrats considered Hoens, a Republican appointed by Gov. Christie Whitman, a guaranteed vote for Christie on controversial issues, and some even privately accused her of pandering to the governor to save her job.  That she was one of only two judges, along with the Christie-appointed Anne Paterson, to side with the governor on last month’s decision regarding his  plan to abolish the Council on Affordable Housing, only exacerbated that opinion.

So from a judicial balance standpoint, Fernandez-Vina, who supporters say is a lifelong Republican, does not affect the court make-up.  If anything, party insiders say, the new justice – should he be approved – will be a less reliable Christie vote.

Fernandez-Vina also gives the court a minority presence, one it has not had since the departure of Justice  Roberto-Rivera Soto.  The court had already dropped from two minority members to one when Christie chose not to reappoint Justice John Wallace in the first salvo of the battle over the court.

Senate Judiciary Committee member Loretta Weinberg yesterday touched on the importance of Fernandez-Vina’s heritage in her statement calling for a hearing.

I share the Senate President’s position that diversity, qualifications and balance are most important and I am happy that Governor Christie has nominated someone who will add diversity to the court to fill the seat currently held by Justice Helen Hoens,” she said in a statement.

Since the standoff began, Democrats have called for a minority presence on the court, a call Christie has tried to heed with the nominations of Phil Kwon, a Korean, Bruce Harris, who is black, and David Bauman, who is Japanese, to the court.

Kwon and Harris were shot down last year by the committee while Bauman waits in limbo for a hearing that may never come.

But with Fernandez-Vina, Christie may have found the right mix of resume and heritage.

A quick confirmation of Fernandez-Vina helps Democrats in other ways, also.  After the votes on Harris and Kwon Christie angrily accused Democrats of playing obstructionist politics and sullying good names to wage war on him.

He furthered that storyline last week when he said he thought too much of Hoens to let the “animals loose on her.”

And with Bauman and Robert Hanna stuck in political purgatory, Democrats risk living up to Christie’s obstructionist label.

Seating Fernandez-Vina on the court quickly deflects some of that criticism.  Democrats would be two and two on Christie’s nominations, with two still waiting.

At least two members of the committee, along with Senate President Steve Sweeney, have signaled their intent to give Fernandez-Vina a hearing and insiders say it’s likely barring any as-yet-unknown problems with his background that he’ll be approved by the committee.

Sweeney has not said when he plans to call for the hearing, but it’s clear the Senate president has lobbied behind the scenes for a quick resolution.

According to several Democrats, Sweeney assured his caucus last week that Fernandez-Vina was his own man and not a Christie-rubber stamp as some feared.

To hammer home his confidence, Sweeney told his caucus that the new nominee had been approached once before for a seat on the high court – when Christie ousted Wallace – but chose at that time to steer clear of the controversy swirling around Wallace.

Meanwhile, the court has two vacancies – three factoring in Hoens – a situation many call potentially problematic.  Asked if interim judges dilute the court’s opinions, Rutgers Law Professor Robert Williams said while they are constitutionally valid, they could open the door in a closely decided case.

“Technically, it should not because the interim or the temporary serving judges are constitutionally valid,” Williams said earlier this week. “On the other hand, and particularly in close cases, … if one of the temporary serving judges casts the deciding vote, you can imagine that out in the future the argument being made is that certainly the quality of that precedent is somehow reduced or that the decision wouldn’t have the sort of binding or persuasive quality that it [may otherwise] have.”

The case for Fernandez-Vina