In a matter of weeks Governor Christie will announce his nominations for two new members of the New Jersey Supreme Court. In the past governors have sometimes nominated justices from the opposite party but Christie has given no indication of following that path. If he nominates two Republicans and has his way the court will change from majority Democrat to majority Republican, with possible impacts on the racial/ethnic make up of the bench. Christie has said he wants to rein in a court he considers too activist. Asked about the governor’s future nominations, Sen. Raymond Lesniak, (D- Union County) said the governor “doesn’t object to the Supreme Court making policy, as long as it’s his policy it’s making.” One can expect that sea changes may well affect future rulings on such policies as school funding, marriage equality, and much more.
The seven-member NJ Supreme Court currently has three Democrats (Justices Rabner, Albin, and Long), one Independent (Justice LaVecchia), two Republicans, (Justices Patterson and Hoens). It also includes one temporary member in the seat formerly held by Democrat John Wallace which Sen. President Sweeney refused to fill until Wallace’s mandatory retirement age because Gov. Christie took the unprecedented step of not granting Wallace tenure. Now Governor Christie has an opportunity to fill two positions due to the members reaching the mandatory age of 70: Democrat Justice Virginia Long and the vacant seat of Democrat Justice Wallace. Assuming Christie fills these positions with Republicans and they pass Senate muster, the makeup of the court will change to two Democrats, one Independent, and four Republicans.
There is a tradition of governors appointing to the Supreme Court members of the opposing party. Of those sitting on the court now Republican Governor Whitman nominated Democrat Justice Long and Democrat Governor Corzine nominated Republican Justice Hoens. Whitman also nominated Justice LaVecchia, an Independent. Also Justice Rivera-Soto, nominated by Governor McGreevey but considered one of the court’s most conservative justices is the most recent member to depart.
With the departures of Justice Rivera-Soto, Hispanic, and Justice John Wallace, African-American, and with the arrival of Anne Patterson to replace Rivera-Soto, the current court is made up of five women and two men, all of whom are white.The Legislative Black Caucus, the NAACP, Latino Action Network and others wrote to Senate lawmakers last year asking that they approve only nominees who increase the court’s diversity and independence. Blacks, Latinos and Asians make up more than 40 percent of NJ’s population. Christie said in May he would be mindful of minority concerns when making his next appointments, but he did not promise diversity.
School Funding – In May 2011 the Supreme Court ruling brought relief and satisfaction to the 31 poor cities ordered to get $500 million more in state aid for schools next year. This did not make Christie happy. Justice Jaynee LaVecchia wrote this 3-2 opinion, with Justice Barry Albin and temporary Justice Edward Stern in agreement. Justices Rivera-Soto and Hoens dissented. Chief Justice Stuart Rabner and Justice Virginia Long did not participate. Now with Patterson on the bench, and soon with two new nominations from Christie, a very different decision might be reached on future school funding.
Marriage Equality In 2006 the court unanimously agreed that current state marriage law is unconstitutional with respect to the equal protection of same sex couples. The court was divided as to what remedy was required. According to finddlaw.com, four justices (the majority) including Albin and LaVecchia, who remain on the court and two who have left, ruled that the legislature can either amend marriage laws or create civil unions. Three justices (the minority), Democrat Long who is about to leave the court and two Democrats who have already departed, argued that the only constitutional remedy is an amendment of state marriage law to include same-sex couples. The legislature speedily enacted a flawed Civil Unions law, but there is now in Suprior Court a lawsuit seeking marriage equality and an end to civil unions. With the departure of so many Justices since 2006 and with a new court presumably soon to be majority Republican, the road to marriage equality through the Supreme Court will not be easy.
Governor Christie, with his banner slogan boast of “Doing The Big Things: Can’t Stop Now!” will soon have an ally in some of his most misdirected “Big Things.” One Blue Jersey writer commented, “My question is whether the Senate is going to cave on this. It impacts – well, just about everything.” Our Senate may delay, oppose one or more nominee, or seek a bargain with the governor. And appointed justices do not always vote as expected. But we should all be concerned. Very concerned.