Litigation

A New Tempest for NJ High Court

By Peter Hardin

A New Jersey Supreme Court reappointment flap in the spring has spawned a new tempest, laced with extraordinary exchanges and heated tempers and now labeled a “national disgrace” by the New York Times editorial board.

A sitting justice has pledged to abstain from further decisions on grounds the makeup of the court is unconstitutional. The state Senate president urged the justice to resign while blasting him as “the worst and most ethically challenged Justice in the history of the modern judiciary.” And the episode may not be over.

Here’s a quick chronology:

In the spring, Gov. Chris Christie made a controversial decision not to reappoint incumbent Justice John Wallace Jr., saying  the court had not done enough to give the state constitution a strict reading. It was the first time since the constitution was rewritten 63 years earlier that a governor had denied such a reappointment that was sought by a justice.

A furious controversy followed, and charges flew that the governor was jeopardizing judicial independence (see Gavel Grab). He appointed Anne Patterson, a lawyer and significant donor to Republicans. Senate Democrats, unhappy with the Republican governor’s decision, declined to consider her nomination.

Fast-forward to this month. In an opinion Dec. 10, the high court was divided over Chief Justice Stuart Rabner’s action to  replace Justice Wallace with a temporary justice. A court majority backed Justice Rabner.

One member of the court, Justice Roberto Rivera-Soto (photo above left), slammed the temporary appointment. He said the court makeup was unconstitutional and pledged to abstain from court decisions, the Newark Star-Ledger reported. Justice Rivera-Soto wrote:

“The assignment of a Superior Court judge to serve on this court to fill a vacancy resulting from a political impasse between the executive and the legislative branches thrusts the judiciary into that political thicket, all the while improperly advancing one side?s views in preference over the other?s.”

“The Constitution, sober and reflective court practice, and everyday common sense each counsels against the foolhardy steps the court today takes.”

Senate President Stephen Sweeney (photo above right) quickly called on Justice  Rivera-Soto to resign, saying, “This isn?t the first mistake Rivera-Soto?s made since joining the Court, but it should be his last.” The Democratic politician continued:

?Today?s dissent from Justice Rivera-Soto shows contempt for the law, disregard for his fellow jurists and utter disdain for the right of New Jerseyans to have their cases heard by a full Court.”

?It officially cements his place as the worst and most ethically challenged Justice in the history of the modern judiciary. If he is so disinterested in fulfilling his constitutional duties, then he should step down and let the Governor nominate and the Senate confirm a new justice who will actually participate in Court matters.”

This week, a New York Times editorial lamented the episode under the headline, “The Politicization of a Respected Court.” The editorial said Gov. Christie’s “political overreach” in May had been followed by “a national disgrace, thanks to the governor, the State Senate president, Stephen Sweeney, and Justice Roberto Rivera-Soto.”

The editorial suggested that Justice Rivera-Soto had been censured by the court earlier and “this latest move appears to be driven by politics, not principle.” The editorial concluded:

“All of the players involved need to work to resolve this drama. Justice Rivera-Soto should do his job or resign. Governor Christie should respect the state?s tradition ? one that has worked very well ? and renominate Justice Wallace. Senator Sweeney should rethink his strategy of matching partisan overreach with more partisan overreach. The credibility of New Jersey?s Supreme Court must be protected.”

Justice Rivera-Soto was appointed to the bench by then-Gov. James McGreevey, a Democrat. Justice Rabner was appointed by then-Gov. Jon Corzine, a Democrat. He once worked for Christie, and was critical in May of Christie’s decision not to reappoint Justice Wallace.

Full post as published by The Gavel on December 16, 2010 (boomark / email).