The state Supreme Court, which has been without its full complement of justices since mid-2010, will likely remain that way until after November’s elections, and quite possibly well into next year.
There seems to be no inclination on the part of the Democrat-controlled Senate to move to confirm Gov. Chris Christie’s nominees, neither of whom are Democrats, to fill two vacancies on the court.
The Senate is under no legal or constitutional time pressure to act. The court maintains its quorum of five justices, and because experienced appellate judges have been staffing the other two slots, there has been no disruption of court operations.
Senate President Stephen Sweeney said last month that he was engaged in "due diligence" on the nominees — Superior Court Judge David Bauman and Board of Public Utilities president Robert Hanna — but had set no timetable.
The consensus among Trenton insiders is that Sweeney will not hold confirmation hearings before November. That would spare Democrats up for re-election from having to vote on candidates that could shift the court’s political balance.
The five sitting justices are comprised of two Democrats, two Republicans and one independent. Adding Bauman, a Republican, and Hanna, an independent, would create a GOP plurality. What’s more, Hanna’s independence is attenuated by his having made contributions to Christie.
Elections are only seven months away, and even if Senate Judiciary Committee hearings were to be scheduled earlier, newly appointed justices would likely not be seated until the court’s new term begins in the fall.
The harder question is what happens after Election Day. Barring an upset by Sen. Barbara Buono, the leading Democratic contender, Christie will be handed a four-year, lame-duck term, part of which may be spent campaigning for national office.
Democrats, who are expected to maintain their majority in the Senate, would have little incentive to work at confirming the governor’s picks.
Appellate Division Judges Mary Cuff and Ariel Rodriguez, who have been temporarily assigned to the court by the chief justice, could continue in those roles indefinitely until they reach mandatory retirement age in 2017.
Another reason the stand-off may not end soon is that it affects very few people. "In the realm of Sandy relief, legislative elections, taxes and foreclosures, you have to question whether that issue rises to the same level," says a former legislator with knowledge of the nomination process. "Realistically, there is no deadline."
In the end, the issue will be resolved "over something extraneous" that will benefit Sweeney, such as money for charter schools in his district or some other funding proposal that gets Christie’s green light, he says.
Jim McQueeny, a political strategist who was formerly U.S. Sen. Frank Lautenberg’s chief of staff and communications director for the Assembly Democrats, agrees that sitting on the nominations has little downside for Sweeney or the Senate Democrats.
"It’s not in the mainstream of voters’ minds," says McQueeny, the president of Winning Strategies, a Newark-based marketing company. "I’m sure the calculations have been made." The only limit, he says, is that "at some point, Sweeney can be portrayed as an obstructionist."
Carl Golden, a former communications director for Republican Gov. Thomas Kean and now a senior contributing analyst at Richard Stockton College’s William Hughes Center for Public Policy in Galloway, agrees.
"The political downside is negligible," Golden says. "For voters, it’s simply not something that’s on their minds when thinking about candidates and elections."
Sweeney, says Golden, may also be holding on to see if Buono or some other Democrat unseats Christie in November. If Christie wins, then the mood may be different, he says.
"Once the election is over, Christie can move this back into the debate," says Golden.
John Weingart, the associate director of the Eagleton Institute of Politics at Rutgers University, agrees there is nothing to stop Sweeney from effectively blocking the nominations indefinitely. Sweeney represents a safe Democratic district and would be forced into action on the matter only if an opposing candidate could use it to win support.
Weingart sees one potential scenario that could be problematic: if a major public policy ruling, such as one involving education or housing, is decided by a closely divided court or written by one of the Appellate Division judges.
"The rulings would be binding, but they would be questioned," he says. "This is like sequestration. It’s not good government."
Ben Dworkin, the director of the Rebovich Center for New Jersey Politics at Rider University in Lawrenceville, is among those who see no emergency in the vacancies persisting as long as qualified appellate judges are available to step up to the plate.
"There is no great public outcry," says Dworkin. "The court continues to conduct its business, and is bringing up players from the Appellate Division when it needs to."
Dworkin says Christie may have himself to blame for the Senate block because of his 2010 decision to ignore decades of precedent and not reappoint Justice John Wallace Jr., as part of his mission to reform what he labeled as an activist court.
"This [impasse] is pretty much unprecedented, but it all changed with Wallace," says Dworkin. "Now, these kinds of agreements no longer hold and all bets are off."