The Senate Judiciary Committee on Thursday unanimously approved of the nomination of Camden County Assignment Judge Faustino Fernandez-Vina to the New Jersey Supreme Court.
If confirmed by the full Senate, as is considered a near certainty, he will replace fellow Republican Helen Hoens, whom Gov. Chris Christie refused to nominate for tenure in August.
The 13-0 vote came despite some sharp questioning by committee Chairman Nicholas Scutari and Sen. Raymond Lesniak, both Democrats from Union County, on specific legal issues — ranging from affordable housing to same-sex marriage – that Fernandez-Vina declined to answer because he will likely be called to consider as a justice.
In brief opening remarks, Fernandez-Vina said the role of the courts is to interpret and not make law. At the same time, however, he said a justice “must act independently.”
Scutari, a litigator with a practice in Linden, immediately began questioning Fernandez-Vina about his thoughts on the court’s divided ruling in He v. Miller 207 N.J. 230 (2011). Hoens, writing for a 3-2 majority, said trial judges could overturn jury awards based on their “feel of the case.” Scutari asked Fernandez-Vina what he thought of the ruling.
Fernandez-Vina declined to discuss his thoughts on the ruling, but noted that as a trial judge he is bound by it.
Both Scutari and Lesniak grew increasingly more frustrated over the course of the two-hour hearing when Fernandez-Vina repeatedly refused to speak about his personal beliefs on issues of public policy, although nominees for judicial posts historically have declined to give their personal opinions.
Scutari asked Fernandez-Vina why he believed he could not answer questions, and pointed out that Justice Barry Albin, during his confirmation process, did answer questions about the court’s rulings.
Fernandez-Vina said he believed he was governed by Canon 2A of the Code of Judicial Conduct, which says judges must act in way that promotes public confidence in the judiciary.
He said he believed that if he commented on rulings by the court, or by other judges, it would erode the public’s confidence in the justice system.
Lesniak specifically asked Fernandez-Vina to discuss the court’s rulings on affordable housing and education funding — two areas in which Christie has repeatedly said he wants there to be a change of course. Fernandez-Vina said his personal views were unimportant.
“Your opinion is important to me,” Lesniak replied.
Fernandez-Vina said it would be inappropriate to comment.
“That is so wrong,” Lesniak said. “I can’t vote for someone who can’t give me their opinions on issues.” He eventually voted in favor of the nomination.
Sen. Nia Gill, D-Essex, told Fernandez-Vina that she understood why he declined to talk about specific issues, adding that Albin only discussed opinions that he had written.
“To ask about your personal beliefs about opinions from the Supreme Court is entirely different,” she said.
Sen. Christopher Bateman, R-Somerset, agreed. “There shouldn’t be a litmus test,” he said. “It would be totally inappropriate to comment on these issues.”
In response to a question posed by Sen. Paul Sarlo, D-Bergen, Fernandez-Vina said he had not spoken with anyone in the Christie administration about his personal beliefs on any particular issue that may come before the court.
Even though he voted to support the nomination, Lesniak expressed some reservations.
“We should know what his judicial philosophy is,” he said. “We do not know what this nominee’s judicial philosophy is.”
Lesniak took care to note that Fernandez-Vina would be replacing Hoens and said Christie should have nominated her for tenure whether he would have supported her or not.
Christie, when nominating Fernandez-Vina in August, said he chose to not nominate Hoens for tenure because he did not want to subject her to possible political retaliation for his decision in 2010 to not nominate Justice John Wallace Jr., a Democrat, for tenure. His seat, along with that of retired Democratic Justice Virginia Long, remains vacant and both seats are being temporarily filled by Appellate Division Judges Ariel Rodriguez and Mary Cuff.