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New Jersey bar president calls Christie criticism 'borderline unethical'

ATLANTIC CITY - New Jersey's chief justice didn't opine on the extraordinary upheaval and political controversies in the state's court system Friday during his annual "State of the Judiciary" speech at the state's bar association convention.

Gov. Christie. File (Clem Murray / Staff Photographer)
Gov. Christie. File (Clem Murray / Staff Photographer)Read more

ATLANTIC CITY - New Jersey's chief justice didn't opine on the extraordinary upheaval and political controversies in the state's court system Friday during his annual "State of the Judiciary" speech at the state's bar association convention.

But the new president of the New Jersey State Bar Association most certainly did, in an interview slamming as "borderline unethical" Republican Gov. Christie's recent criticism of one judge's ruling.

In introducing the chief justice, bar president Kevin P. McCann, a Democrat with a practice in Bridgeton, told the gathering that judges should not be "looking over their shoulder" or "second-guessed by someone else." The couple hundred lawyers in the theater at the Borgata casino applauded, and McCann added: "What [judges] are doing is not based on politics, it's what they think is right."

The comments were a direct response to how Christie has broken precedent in his dealings with the state's courts. Remaking the Supreme Court has been a focus of his term, and the governor has pursued this agenda in his blunt style both through actions and from behind a microphone. He has criticized court decisions, called out judges by name, and mused about ignoring one particular Supreme Court ruling.

Amid those sound bites, along with two unfilled vacancies on the seven-member Supreme Court, a crisis in the Essex County courts, and new efforts to raise the mandatory judicial retirement age, the Christie years are shaping up as memorable for the state's judicial system.

The opening salvo was the governor's unprecedented decision in 2010 to not renominate Justice John Wallace, the only African American and South Jersey resident on the panel. The memory of that moment lingers.

"This is nuts," McCann said of Christie's decision on Wallace in an interview after his speech. As a justice, "you're supposed to be able to make a fair, reasoned decision based on the law and factors as you understand it, and not worry that you're not going to get reappointed because the governor doesn't like your decision. . . . He's controlling the other branches of government if we do it that way."

New Jersey law allows for an unusually powerful governor's position, though the court can stop gubernatorial policies dead in their tracks. For an active conservative governor who believes the court has been historically liberal, this is endlessly frustrating.

The high court could rule soon on Christie's decision to abolish the Council on Affordable Housing, which has governed housing policy for decades. The court has already blocked his efforts to control how much funding poor school districts should get.

"You don't elect the Supreme Court; you don't expect them to be making law," Christie said at a Cherry Hill town hall after the decision on school funding. At another town hall, he called out Justice Barry Albin as someone so "high and mighty" he isn't accountable to citizens "but he can take his hand and put it in your pocket and he can take your money."

Christie has made one successful Supreme Court appointment, Anne M. Patterson, who was confirmed after a more than yearlong delay in the Democratic-controlled Legislature. There are two vacancies left to fill.

In a rare rebuke, his nominee for one of them, Phillip Kwon, was rejected by the Senate Judiciary Committee amid questions about his family's business dealings. It was the first time under the current state constitution, adopted in 1947, that a gubernatorial appointment to the court was not approved.

Christie has yet to name a replacement, and hearings for his nominee for the other vacant seat, Chatham Mayor Bruce Harris, have been postponed to May 31.

Harris, who is openly gay and an African American, also appears to face an uphill battle for confirmation. Though he has a degree from Yale Law School, he has never been a judge or tried cases in court. Some Democrats also question why he has said he would recuse himself from hearing a gay-marriage case.

Asked how the continued vacancies might affect the workings of the court, Chief Justice Stuart Rabner said in an interview Friday that the summer is a quiet time in the court before cases start up again in September.

Rabner, who served under Christie when the governor was U.S. attorney, wouldn't touch questions about the politics surrounding the courts, saying only that he hoped to increase public awareness of the judicial system. He plans to replicate a Florida effort in which lawyers and judges speak at schools and community groups about the role of the courts.

Rabner said he was glad a standoff between Senate Democrats and Christie over the renomination of Superior Court judges had ended. Seventeen are expected to get hearings next week.

But in Essex County, courts have been in a state of chaos after a Democratic senator from the county used "senatorial courtesy" to block the confirmation of Christie's acting education commissioner.

The informal rule allows a senator to single-handedly block any nominee from his or her own county. In response, Christie did not forward nominations for Essex County judges, leaving the system there short. Civil cases were not heard for months.

Meanwhile, Christie is front and center in another case now headed to the Supreme Court. In the fall, a Mercer County Superior Court judge ruled that judges weren't subject to Christie's public benefits overhaul law, which would have reduced their pensions, and Christie pounced.

He called the decision "self-interested" and said the judge, in order to "put more money in her pocket and the pocket of her cronies, has decided that the pension system being broken is fine by her, as long as she gets hers and her colleagues get theirs."

McCann called those comments by Christie, a lawyer, "borderline unethical."

A Christie spokesman, Kevin Roberts, dismissed McCann's criticism as "looking to get a headline" and accused lawmakers of abuse of senatorial courtesy.

One change, tentatively approved by a Christie-controlled panel on Friday, might get a warmer welcome from the legal community. The state Pension and Health Benefits Review Commission recommended raising the mandatory judicial retirement age from 70 to 75. Changing the retirement age for Supreme Court justices and Superior Court judges would require a constitutional amendment.

Mandatory retirement forced Virginia Long to step down from the high court, creating one of the vacancies. She has said she would want to do away with the rule.

Honored at the bar association convention, Long referenced the "challenges" facing the judiciary without specifically mentioning Christie.

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