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

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