Party balance likely to be largest hurdle in Supreme Court confirmations

As tensions grow over Gov. Chris Christie’s Supreme Court nominees, Democrats behind the scenes say the battle is likely to

As tensions grow over Gov. Chris Christie’s Supreme Court nominees, Democrats behind the scenes say the battle is likely to unfold as much over the make-up of the court as it is over the qualifications of the two men nominated last month.

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On Jan. 23, Christie unveiled Phil Kwon and Bruce Harris as his nominees to take over one vacant and one soon to be vacant seat on the state High Court.  Harris is a registered Republican, while Kwon is unaffiliated, putting what Republicans say would be three Republicans, two Democrats and two independents on the court and maintaining the traditional balance.

“The simple facts are these:  Bruce Harris is a Republican and Phillip Kwon is an independent.  Their confirmation would provide a Court with 3 Republican members, 2 Democrats and 2 independents.  Keep in mind when discussing ‘balance,’ the court has had a 4-member Republican majority only 5 times in the Court’s history, vs. 19 times when there has been a 4-member Democratic majority,” said administration spokesman Kevin Roberts in an email to reporters.

State Sen. Kevin O’Toole, (R-40), Cedar Grove, reiterated that stance in an Op-Ed he submitted to PolitickerNJ.

“Governor Christie’s appointments will honor the real intent of the compromise by creating a true party balance comprised of three registered Republicans (Hoens, Patterson, Harris), two registered Democrats (Rabner, Albin), and two unaffiliated Justices (LaVecchia, Kwon),” O’Toole wrote.

But internally, Democrats dispute the administration’s math on the make-up of the court.  Voter registration records provided by the City of New York show that Kwon was a registered Republican in the state and only lost his party affiliation in April, when he registered to vote in New Jersey.

And though Kwon registered in New Jersey as an unaffiliated voter, Democrats say his Republican voting history is what they will consider during the nomination process.  In addition, some Democrats dispute the assertion that Justice Jaynee LaVecchia is an independent, though her voter registration also is unaffiliated.

Putting both Kwon and Harris on the court, Democrats say, could push it to a 5-2 GOP majority and jeopardize Democratic values in the state for years to come.

Since the adoption of the state constitution in 1947, governors have abided by the unwritten rule that the court should never sway too far in one direction or the other.  Justices have come and gone, but partisan balance has been maintained.

In an article for the Seton Hall Law Review, Professor John Wefing, husband of temporary Justice Dorothea O’C. Wefing, explained the reasoning behind the balanced structure.

“There will always be at least three Democrats and three Republicans on the Court, and one additional member from either party. This is virtually unique when looking at states across the country. This balance keeps governors from having the ability to totally reconstruct the court in any one direction.”

As a candidate for governor, Christie himself said he intended to honor the tradition and a spokesman for Christie indicated as much in an email sent on Jan. 30.

“The Governor’s nominations preserve balance on the court, as it has been known since the adoption of the 1947 constitution,” Roberts said in a Jan 30 email.

LaVecchia was appointed to the court by Gov. Christie Whitman after working in the Whitman administration as the Commissioner of Banking and Insurance. LaVecchia had also served in the administration of Gov. Tom Kean. 

At the time of her nomination, Democrats, while supportive of LaVecchia, questioned whether it was wise to appoint another judge from Whitman’s inner circle.  Whitman had already appointed Chief Justice Deborah Poritz and Justice Peter Verniero, who both served under Whitman as attorney general.

While she has usually been considered an independent when the make-up of the court is discussed, according to Wefing, that’s not the case.

“Justice LaVecchia is registered as an independent but was active in various Republican administrations and is widely viewed as a Republican,” wrote Wefing in an article in the school’s law Review titled “The Performance of the New Jersey Supreme Court at the Opening of the Twenty-First Century: New Cast, Same Script.”

Republicans counter this view, however, and cite LaVecchia’s scathing opinion in the most recent Abbott school funding case.  Writing for the majority, LaVecchia scorched the Christie administration for what she said was its failure to live up to past promises.

“Like anyone else, the State is not free to walk away from judicial orders enforcing constitutional obligations,’’ LaVecchia wrote in her opinion. “The State seeks, through the legislative power over appropriations, to diminish the Abbott districts’ pupils’ right to funding required for their receipt of a thorough and efficient education after representing to this Court that it would not do so in order to achieve a release from the parity remedy requirement. In such circumstances, the State may not use the appropriations power as a shield to its responsibilities.”

But Democrats will have the final say on the nominations and their view of LaVecchia as a Republican could make the confirmations of Kwon and Harris  more complicated.

Harris, a Republican, is seen as the weaker of the two because of his lack of courtroom experience.  His experience has already become an issue in the back and forth between Democrats and Christie and privately Democrats are disdainful of his qualifications. But as a black, openly gay Republican, Democrats could be hard pressed to deny his appointment, particularly when they have demanded diversity on the court.

But despite his own minority status, Kwon could present a larger challenge.  His spot should go to a true independent, insiders say, making his external issues an easy out. One prominent Democrat said the Christie-nominee, who if appointed would be the first Korean-American to serve on the court, has three problems.

First, the Star Ledger reported Sunday that a business owned by Kwon’s mother paid $160,000 to settle a civil complaint over more than $2 million that was deposited into a bank account in increments of slightly less than $10,000.  A pattern of deposits like that is known as structuring and is often used to move large sums of money undetected and can signal a pattern of money laundering.  

No charges were filed in the case, but Democrats have said they intend to question Kwon on the settlement and even request tax records from the nominee.  The issue, at least one Democrat said, could jeopardize his nomination.

“When you have such a large pool of people to select from, you shouldn’t have people on (the court) with questionable issues,” Sen. Nicholas Scutari, chairman of the Senate Judiciary Committee, told Star Ledger reporter Chris Baxter, who broke the story on the deposits.

Second, Democrats say Kwon’s short-term state residency – he has lived in New Jersey for less than two years – is a concern.  He has voted in just one state election, though he has worked in New Jersey for more than a decade.

“There is a lot of talk about residency of legislative candidates, but we are going to allow someone who has lived here less than two years to sit on the Supreme Court,” one Democrat asked when Kwon’s name was first announced.

Third, Kwon was a registered Republican in New York.  Voting records show he registered in 1997 and voted in general elections in 1997, 1998, 2005, 2008 and 2009.  Last year, he registered in New Jersey but remained unaffiliated with a party.   Republicans point to the lack of affiliation as proof that Kwon is independent, but Democrats say the argument is dishonest and is akin to one of the court’s known Democrats suddenly changing registration and claiming to be independent. 

Republicans seem to be preparing for the residency battle.  In his emails touting Kwon’s credentials and making the argument that Kwon will preserve the balance, Christie spokesman Roberts hints at how the administration may shape the coming battle.

Roberts stresses that no party has ever had more than four representatives on the court.  If the administration concedes Kwon as a Republican, which to date has not happened, that puts the court at four Republicans, two Democrats and an independent, keeping the body, and Christie, in balance.

“Historically, Governors have not had GREATER than a 4 member majority of their own party,” Roberts said in the same Jan. 30 email in which he said the administration planned to honor the unwritten rule.

So far, the Senate Judiciary Committee has not moved to schedule a hearing for either nominee and asked when the committee planned to meet, committee Chairman Sen. Nicholas Scutari said “no time soon.”

Christie has called for a hearing by March 1, in the process accusing Scutari and others of reneging on a promise made by Senate President Steve Sweeney last year, but Democrats say it’s unlikely.

Party balance likely to be largest hurdle in Supreme Court confirmations