By THOMAS A. GENTILE
On Friday, in a mundane case regarding a statute of limitations, the stakes in the ongoing stalemate between Governor Chris Christie and Senate President Stephen Sweeney over the composition of New Jersey’s Supreme Court were raised to a new level. In an opinion abstaining from that case, Associate Justice Roberto Rivera-Soto announced that he would abstain from all decisions of the Court as long as the seat vacated by former Associate Justice John Wallace remains filled by a lower-court judge whom Chief Justice Stuart Rabner has unilaterally appointed to the Court on an interim basis. There remains no permanent replacement for Justice Wallace because Senate President Sweeney has refused to convene confirmation hearings on Governor Christie’s nominee to fill the seat, accomplished attorney Anne Patterson.
Justice Rivera-Soto’s decision to abstain was grounded in a common-sense reading of the provision of New Jersey’s Constitution that allows the Chief Justice to make such an interim designation only “when necessary” to provide a quorum. Yet Senate President Sweeney and his fellow Senate Democrats, seeing only the political side of the issue, have responded by calling for Justice Rivera-Soto to resign. Here again we see Senate President Sweeney seeking to exert his own political influence over the Supreme Court to an extent beyond anything that New Jersey’s constitution envisions. From the full Senate’s power to confirm or reject the Governor’s nominees, Senate President Sweeney has extrapolated for himself (and himself alone) the supposed powers to deny hearings on any nominee of whom he disapproves; to empower the Chief Justice to pack the Court with unconfirmed, interim judges; and to demand the resignation of any Justice who, in applying New Jersey’s laws and Constitution, reaches a conclusion that does not comport with Senate President Sweeney’s political ends.
The clamor in Trenton over Justice Rivera-Soto’s decision to abstain demonstrates vividly that it is Senate President Sweeney who poses the true threat to judicial independence. Rather than exacerbating this crisis by calling for Justice Roberto Rivera-Soto to resign, Senate President Sweeney should immediately bring an end to the standoff by allowing Governor Christie’s Supreme Court nominee, Anne Patterson, to have an up-or-down vote in the Senate.
Should Senate President Sweeney and his fellow Senate Democrats choose to continue playing politics with the Supreme Court, the issue may ultimately be resolved through the electoral process. As the people of New Jersey prepare to cast their ballots in the state’s 2011 legislative elections, the issue of New Jersey’s Supreme Court (and its long record of ineffective legislation from the bench) is poised to be central to the campaign.
Earlier this year, Governor Christie masterfully transformed routine school budget elections from a rubber-stamping of backroom deals to a public referendum on his plans for fiscal and education reform. With the latest polls showing Governor Christie continuing to enjoy the support of a majority of New Jersey voters, the opportunity may arise for Governor Christie to take the issue of his appointments to New Jersey’s Supreme Court directly to the people in the next round of legislative elections. Far better that the people of New Jersey have a say in the future of their state’s Supreme Court than a sole legislator continuing to singlehandedly impose judicial chaos.
Thomas A. Gentile is a partner in the New Jersey-based law firm of Lampf, Lipkind, Prupis & Petigrow. In 1996 and 1997 he served as a law clerk to Samuel A. Alito, Jr., then a Judge of the United States Court of Appeals for the Third Circuit.