Standoffs over New Jersey judicial nominations could sully court's reputation

The New Jersey Supreme Court, once viewed as a bastion of independent, if liberal, jurisprudence, risks a sharply diminished reputation if political battles over filling its empty seats are not quickly resolved, legal experts and court-reform advocates say.

The immediate issue facing the court is the maneuvering between Gov. Christie and Senate Democrats over the two unfilled positions.

But experts say the larger issue is the breakdown of an informal, decades-old agreement between the parties to minimize partisan wrangling over judicial nominees.

And the resulting damage to the court's reputation.

"This has been watched all over the country," said Robert Williams, a law professor at Rutgers School of Law-Camden who focuses on the Supreme Court. "For all of these years, people had the feeling that whatever happened, the court was independent, and it was essentially never looking over its shoulder. Now, after the political back and forth has taken place, no matter what happens with a high-profile case, people will chalk it up to politics."

Earlier disputes over the court were resolved decisively in favor of judicial independence or turned, as in the case of former Chief Justice Peter Verniero, on alleged ethical missteps, not judicial philosophy, Williams said.

"There had been a gentleman's agreement or a gentleperson's agreement for many years . . . that a person would be renominated regardless of the kinds of decisions that they had reached," he said.

State Senate leaders have been noncommittal about whether they will schedule hearings on Christie's nominees for the seven-member court: David Bauman, a Monmouth County Superior Court judge; and Robert Hanna, president of the state Board of Public Utilities.

But Senate leaders reportedly are reluctant to bring up the nominations for fear of giving Christie an issue in the fall elections.

"Any time politics becomes the focus of judicial selection, it puts judges in the position of having to play politics," said K.O. Myers, director of research and programs at the American Judicature Society, a nonpartisan organization that promotes judicial independence. "It would be hard even unconsciously not to be concerned about your job."

The issue has come up repeatedly on the federal level in recent years, most prominently in 2010, when President Obama directly criticized members of the U.S. Supreme Court during his State of the Union address for overturning restrictions on campaign fund-raising.

As Obama spoke, Justice Samuel Alito, a former U.S. attorney for New Jersey and judge on the U.S. Court of Appeals for the Third Circuit, silently mouthed "no" in response.

For many academics and legal observers, the battle in New Jersey has focused renewed attention on where and even whether boundaries should be set on commentary by politicians evaluating judges' performance.

Michael R. Dimino Sr., an associate law professor at Widener University Law School who specializes in election and constitutional law, says that politicians are well within their rights to comment on the judicial philosophy of judges and that such commentary is one way to hold them accountable.

"It is healthy," the Harvard-trained Dimino said. "The reason that we have some kind of political influence on courts through appointments and other measures is so that judges don't run amok."

In part because of the quality of its justices and because politicians typically took a hands-off approach, New Jersey's Supreme Court for years had a national reputation for independence. Many on the right saw its rulings as activist and accused the court of usurping the role of the Legislature, as Christie has said since his election in November 2009.

But politicians typically strove to insulate the court from raw political pressure. In one critical case in 1986, former Gov. Thomas Kean renominated then-Chief Justice Robert N. Wilentz to the court over criticism that Wilentz had overstepped his judicial role with rulings that increased urban school funding and low-income housing in the suburbs.

Kean said he opposed Wilentz's jurisprudence but thought it important to renominate him to preserve the court's independence. Wilentz was narrowly reconfirmed, 21-19.

That battle apparently never died down.

Unlike earlier Republican governors, Christie has been blunt in attacking the court for its rulings, deriding it and calling out individual justices by name.

In 2011, he accused the court of sending taxpayers an "invoice" for $500 million after it ruled against his plan to cut school funding by that amount.

"You tell me, how the hell did they get away with that?" he said.

The issue gathered momentum in 2010, when Christie declined to reappoint John Wallace, a Harvard-trained African American jurist and Democrat who had a reputation as a moderate. That was a precedent-shattering decision. Previously, Supreme Court judges up for renomination were presumed to be qualified and typically sailed through the process, unless an ethical or character issue emerged.

The Senate refused to consider Anne Patterson of Mendham, whom Christie nominated to replace Wallace. She later was confirmed when Justice Roberto Rivera-Soto stepped down, and she joined the court in September 2011.

Two subsequent Christie nominees, one African American and the other Korean American, were turned down by the Democratic-controlled Senate Judiciary Committee.

Christie's staff says he is likely to continue to highlight his disagreements with the court through the fall election.

"It's a stunning story for the state Supreme Court to be two justices short," said Roger Dennis, dean of the Drexel University Law School. "To my mind, the gridlock on the court has to be resolved soon, or you are getting to ridiculous point. Image is very important to judicial legitimacy."