After the Vietnamese town of Ben Tre was bombed flat in 1968, an American army officer supposedly said, “It became necessary to destroy the village in order to save it.”
Last week, Sen. Raymond Lesniak, claiming to defend the independence of the New Jersey Supreme Court, suggested that the Democratic majority in the state Senate refuse to confirm Associate Justice Helen Hoens, a Republican, if the governor nominates her for tenure when her term ends in December. The threat appears to hold Hoens’ reappointment hostage for the reappointment of Chief Justice Stuart Rabner. Whatever it is intended to accomplish, it will not restore the post-1947 consensus, in which our Supreme Court’s justices ranged from moderately conservative to liberal, and reappointment at the end of the seven-year probationary term was so routine that they enjoyed de facto tenure during good behavior. Instead, Lesniak’s approach would level the ground on which the court has stood as a bastion of independence and integrity.
But the senator’s approach is nonetheless predictable from a political perspective. Once the governor exercised his power to reshape the court’s membership in accord with his own views of what the law should be, Senate Democrats — a legislative majority — recognized that they could be equal participants in the process of appointment and reappointment, and that they, like the governor, had the right and ability to advance their own views on judicial policy. The governor has the initiative, but the Senate is the gate through which his nominations must pass. It has the constitutional power of obstruction. If the Democratic majority and the governor both survive the November election, we hope that they strike a grand bargain about the two seats now vacant and the two nontenured seats occupied by Rabner and Hoens. That would be far better than the approach endorsed by Lesniak, which would result in a tit-for-tat partisan purge while the court limps along with temporarily assigned appellate judges.
But even a short-term political bargain, without more, will not restore the situation as it was. It will entrench a highly politicized appointment, tenure and confirmation process. As in the federal system, we may see a court more divided, more polarized and more reflective of changes in party control of the Statehouse. Such a court would be weaker in relation to both political branches and less respected by a public often cynical about the basis for judicial decisions.
Nonetheless, now is the time for the political branches to reach an accommodation before they do more damage to the court’s independence and prestige. The governor and Senate President Stephen Sweeney could begin by affirming right now that Rabner and Hoens will be nominated for tenure by the governor and confirmed by the Senate. Maybe then, the governor and Legislature can begin to work toward reversing the damage already wrought on our judiciary.