Much has been written this year about the crisis in judicial independence. Is another voice needed? Yes — in fact, many more.
From the time our modern Supreme Court was constituted under the leadership of Arthur Vanderbilt as its first chief justice, the court has been a beacon for its unique, nonpartisan composition and its far-sighted decision-making. Its balanced political makeup repeatedly has been honored during the past half-century, notwithstanding that justices were political appointees. Yet, the court has been remarkably free of the “politics as usual” that marked the judiciary in other states, particularly those with ugly judicial elections.
In declining to nominate Justice John Wallace Jr. for tenure, the governor frankly stated that his decision had nothing to do with the man; rather, he wanted to “remake” the court with justices more in line with his philosophy, whatever that may be.
As a result, Wallace became the first New Jersey justice to be denied a second term, a decision far from the path of Christie’s predecessors of both parties. There is no doubt that any sitting, nontenured justice would feel the “chill” of the Wallace debacle and, as bad, the public would reasonably perceive that a justice might vote in a manner designed to ensure his or her reappointment, the very evil in states with judicial elections.
If the Wallace decision was a body blow to our judiciary, the failure to renominate Helen Hoens was a virtual knockout. Hoens, a right-of-center justice with impeccable Republican credentials, has devoted her career to the judiciary, as a trial judge, an Appellate Division judge and, for the past seven years, a Supreme Court justice.
The response from our overtly political colleagues can be anticipated: The governor can do what he wants because our state Constitution places no limits on his reappointment power. But having the power does not equate with a responsible exercise of power. The drafters of our current Constitution, in particular the judicial article, would be appalled to be told that a sitting justice could be denied reappointment, not because of infirmity or bad character, but because of a governor’s wish to replace that justice with one more to his liking.
But, to be fair, the fault is not the governor’s alone. Indeed, his ostensible reason for not renominating Hoens was a state senator’s reported remark that Hoens might not pass the Senate if renominated, as “payback” for the Wallace affair. If that were true, the Democrats only raised the stakes in this regrettable game. The Senate Democrats had already rejected the governor’s first two nominees to the court and have so far declined to hold hearings on two current ones.
The stalemate gets uglier by the hour. If the Democrats acted out of high motive alone, their actions might be condoned. But it now seems clear that it is politics, not righteousness, that is the driving force, as the recent nomination of Judge Faustino Fernandez-Vina for the Hoens seat makes evident. Suddenly, Senate President Stephen Sweeney announces that hearings on this nomination will be held forthwith. Obviously (with tongue in cheek), one might think this has nothing to do with the judge being from southern New Jersey, Sweeney’s home turf and an area he feels has been unrepresented on the court.
Of course, one would be wrong — this is all about politics. The Senate has a vital role, which is to give nominees a hearing and a vote. The rejection of the governor’s first two nominees fell comfortably within that constitutional advise and consent role. The current impasse does not.
It should come as no surprise that the citizenry at large does not fully grasp the attack on judicial independence manifested by the Wallace and Hoens fiascos. To members of the general public, judicial independence is just an abstraction that has little impact unless and until they are personally affected by the ruling of a jurist who might be viewed as currying gubernatorial favor to ensure reappointment. So the public is silent.
But where are the lawyers? As members of a profession, every lawyer should be outraged by and outspoken about this reappointment debacle. Yet, lawyers have never been a big political constituency and politicians probably do not care whether every lawyer votes against them. Yet, the governor is a lawyer, as are some key senators. They should care that we care. Regrettably, perhaps they are representative of our profession; so many lawyers, so few devoted to upholding the integrity of the bar. A law degree is now considered by many as just another path to financial success or an adjunct to political ambition.
Where will it all end? The Wallace decision created a sense of foreboding, not so much for Hoens, who appeared to be a shoo-in, but for Chief Justice Stuart Rabner’s not-far-off reappointment prospects. Is the chief doomed? One hopes not, but that may be wishful thinking. And then what? With no Senate action in sight, we will have a court of three regulars — Anne Patterson, Jaynee LaVecchia and Barry Albin — and as many Appellate Division judges as necessary. Once a shining light, our Supreme Court is well on its way to becoming a national joke.
One solution does come to mind. A modest proposal, as Jonathan Swift might say. We could put a stop to the mess, and perhaps shame politicians into proper action, if every attorney or judge approached about an appointment to fill the place of a justice not nominated for tenure were to refuse it. Unfortunately, we can probably file that suggestion under “lots of luck.” •