Nominees Phillip Kwon, Bruce Harris: On Supreme Court, Proceed With Great Caution

In the wake of a torrent of news and opinion about Governor Christie’s nominations of Bruce Harris and Phillip Kwon for the New Jersey Supreme Court, we have a message for Governor Christie: Thank you for bucking the trend of your party and recognizing the need for people of all backgrounds to serve in positions of power. And we have a message for the State Senate: Proceed with great caution.

Governor Christie deserves credit for nominating Harris, the gay, African-American mayor of Chatham, and Kwon, a Korean-American immigrant who has served with Christie as a prosecutor and in his Attorney General’s office. At a time when the Republican Party has become at a national level reflexively anti-LGBT, prone to offensive stereotypes of African-Americans, and virulently anti-immigrant, Christie has sent a message with his nominations that people of color and LGBT people have a place in the highest echelons of government. That message follows on Christie’s strong defense of his Superior Court nominee Sohail Mohammed against Republican critics of Muslims becoming judges.

But we also need to put Christie’s actions in context. As the Philadelphia Inquirer pointed out recently, the all-white composition of the current New Jersey Supreme Court was Christie’s own doing, after his unjustified booting of Justice John Wallace and his failure to replace retiring Justice Roberto Rivera-Soto with another Latino justice. And Christie’s homogenization of the state’s courts has extended to the trial courts, where the vast majority of people interacting with the court system end up. According to the latest official report of the Supreme Court Committee on Minority Concerns (at p. 125):

Prior to the current Committee report, the consistent long-term trend was towards greater representation of minorities among Superior Court judges. . . . The number of Black/African American trial judges has decreased significantly (-11) while the number of Hispanic/Latino judges in the trial division has remained the same since the last report.  There has been no change in the representation of Asian/Pacific Islander/American Indian judges in the trial courts (1)

And of course Christie has nominated Harris in the same week that he has re-declared his strong opposition to marriage equality and, in an attempt to get out of a difficult political box in a state where most people favor marriage equality but his own base does not, stated that civil rights – both for LGBT people and looking back for African-Americans in the South in the 1950s and 1960s – should be determined by referendum.

Tom Moran argues that Christie picked candidates based on a political strategy to box in Democrats:

[W]hat was [Christie’s] goal?

That seems pretty clear in the case of Harris. Christie is trying to block gay marriage in New Jersey, and that could hurt him in a state where most people side with the Democrats. . . . the nomination keeps Democrats off balance. They can’t hit the governor on this without hitting the gay community in the same stroke.

The Kwon move is harder to read. The best guess is that Christie knows he is a hard-core conservative who has left no fingerprints.

Moran’s statement about Kwon leaving no fingerprints was quickly contradicted – by the news department of his own paper. In a single story less than a week after the nomination, the paper found that (a) Kwon only registered to vote in New Jersey in April and previously lived in New York; (b) that in fact he has long identified as a Republican despite a claim by Christie that he is an independent, and as such that would make the Court 5-2 Republican, a total deviation from historic standards of 4-3 partisan balance; and (c) that his family’s business, which Kwon’s wife works for, recently paid $160,000 to settle a federal charge of violating a statute designed to prevent money laundering for criminal enterprises.

In reality, we know very little about either Harris or Kwon, especially because neither has previously served as a judge. It’s hard to know absent further information whether they would be impartial, moderate jurists, or ideological adherents to the Governor’s distorted view of executive power. Christie claimed that both nominees “understand the true nature of a court’s role in a three branch system.” In Christie’s world, that means a Court that defers to whatever he wants – even if it is, for example, doing an end run around the Legislature by Executive Order to try to shut down unions’ involvement in politics, or failing to enforce constitutional protections on the equality of all couples. With a Governor who has been so focused on remaking the Court to serve his ends, as emphasized by a lengthy Wall Street Journal story just two weeks ago in which he made grand promises about how these two nominees would decide cases, we need to know whether there is something that Governor Christie knows about these nominees’ ideology that we, as of yet, do not. The fact that not even a week after the nomination it’s been shown that the Governor was not telling the whole story as to Kwon’s political affiliation gives significant room for pause on that point.

It is precisely because these positions are so powerful that a careful and thorough vetting process is necessary. Kwon has the potential for serving on the state’s highest court until 2037; Harris for about a decade. The Senate, under its advice and consent powers, has the constitutional duty to find out a lot more about them in order to ensure that our highest court remains impartial and balanced.

No matter what the outcome of that process, we hope that Governor Christie’s recognition of the state’s greatest strength – our diversity – will continue in future appointments and actions by his administration.

Comments (14)

  1. Bertin Lefkovic

    There has been mention in various places that Harris would recuse himself from the marriage equality case if/when it comes before the State Supreme Court.  As some have argued, if there is pressure on Harris to recuse himself from this case because he is gay, there should be equal pressure on the straight justices to recuse themselves as well.

    Despite the historic nature of the Harris nomination, I would not vote to confirm any judicial nominee who would bow to pressure to recuse himself from a casely solely due to an inherent personal quality such as sexual orientation.  The precedent that he would set by a decision like this would send shockwaves throughout our state’s and country’s judicial system and place a bull’s eye on the back of future minority nominees who might have to rule on cases that concern the minority group of which they are a member.

    I would hope that the members of the Judiciary Committee who question Harris will demand a clear yes or no answer to this question of recusal and hopefully the answer that they get is a definitive HELL NO.

  2. zi985

    If it is indeed true that Phillip Kwon was a registered Republican when he resided in New York then the Senate Judiciary Committee (and the full State Senate, if necessary) should vote down his nomination.  He only first registered as a NJ voter in May 2011 (as “Unaffiliated”) and this would make it appear that he did this knowing ahead of time that one day he might be considered for a spot on the Supreme Court.  By tradition, a partisan balance is maintained on the Supreme Court, with the sitting governor permitted to arrange his appointments so that his party has a one-seat advantage.  If Kwon and Harris were to both be confirmed, the NJ Supreme Court would consist of 4 Republicans, 2 Democrats, and 1 Independent (this is including Kwon as a Republican).  Christie already chose to break tradition in May 2010 when he refused to renominate Justice John E. Wallace, Jr. and instead nominated attorney Anne M. Patterson.  The Democratic majority in the State Senate should stand up to Christie and not confirm Phillip Kwon if he was indeed a registered Republican in NY.  

  3. Nick Lento

    Simply appointing a person who is identifiable as a member of an oppressed minority group isn’t doing that group any favors if the person themselves identifies with the oppressors of that group.

    Does anyone here really believe that Christie is going to appoint anyone other than hard right corporatists to the bench and people who will see ME as unnecessary (or who are committed to recusing themselves to cover their ideological  tracks).

    Let us not forget that some of the most homophobic and powerfully opprsiive men of the 20th century turned out to be gay in their private lives.  (J.Edgar Hoover etc etc etc)

    If these nominees turn out to be ideological hard core right wing types I would rather have the Senate deny Christie ANY appointments and then let it become a voting issue in 2013.

    When NJ voted for Christie it was a reaction against the perceived weakness/spinelessness of Corzine (they/we wanted a “strongman”) and because of the economic decline.

    NJ doesn’t want to become effing Wisconsin or Michigan or Ohio or Florida where the hard core right wing Republicans have screwed up much that was good and decent about those states.

    The question comes down to are the NJ Democratic state legislators willing to go to the mats and to FIGHT for the interests of the people…or will they take the easy way out and go with the bully’s flow.

  4. saadrooking

    What bothers me more is Kwon’s decision to register as an independent only in April.  It seem as though he was tipped off as to his appointment, and switched to make it appear that he was not a Republican.

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