When Gov. Chris Christie announced he would not renew Justice John Wallace’s tenure on the state Supreme Court, the first time a governor had taken that action since the constitution was reworked in 1947, opponents worried that Christie was treading in dangerous waters.
Taking out a judge threatened the court’s independence, some legal minds said, and could have a chilling effect on the three remaining non- tenured justices.
The argument gained momentum in July, when the court decided it couldn’t hear a challenge to the state’s civil union statute. The vote was three to three with the non-tenured justices voting to punt the decision and the three tenured members voting to hear it.
That decision was devastating to the state’s gay and lesbian population, for sure, but it did not rise to the level that one future decision by a non-tenured justice could.
As part of the state’s efforts at redistricting, due to be completed early next year, each state committee chairman appoints five members to the redistricting committee task force. That ten-member committee then does its best to hash out the state’s new dividing lines, all the while, knowing the final vote will likely be 5 to 5.
If and when the stalemate occurs, the Chief Justice of the State Supreme Court, non-tenured Justice Stuart Rabner, takes control and appoints a non-partisan 11th and deciding member.
The panel’s ultimate redistricting map will decide the fate of the New Jersey legislature for the next decade.
Rabner was appointed by then Democratic Gov. John Corzine, who first made him attorney general before elevating him to the high court. But before coming to work for Corzine, Rabner worked for then U.S. Attorney and current Gov. Chris Christie.
Fans of the “chilling effect” theory, wonder how Wallace’s ouster will effect Rabner’s ultimate decision on redistricting. If the lines are drawn to favor Democrats, will Rabner fear for his job?
Rutgers- camden Law Professor Robert F. Williams said regardless of the answer to the question, the genie is out of the bottle.
“Having done what the governor did, we are going to have this discussion for the foreseable future,” Williams said. “There is now this extra layer of conversation about ‘was that judge tentured or untenured. It will always be in the background when you have a decision by an untenured member of the court and a lot of us feel it erodes confidence in the court.”
Rutgers Law Professor Frank Askin, who warned of the potential chilling effect after the civil union vote, said given Rabner’s reputation for impeccable ethics the redistricting decision will likely not be swayed by politics.
“My inclination is that he would rise above any of that,” Askin said. “I think (the non-tenured justices) may be looking over their shoulders, whether they would acknowledge it or recognize it, especially on big political issues like gay marriage where they know the governor will be looking at them closely. But on an administrative issue about his duty as chief justice I can’t imagine that he would be influenced in any way. “
For the record, Rabner did not take the Wallace decision sitting down, but instead took aim at his former boss in a letter criticizing the decision.
"I am disappointed," Rabner wrote. "Citizens who turn to the courts for relief are entitled to have their cases resolved by impartial judges who focus only on the evenhanded pursuit of justice; litigants should never have to worry that a judge may be more concerned about how a decision could affect his or her reappointment."
