The three-ring circus: New Jersey's 2010 judicial retention crisis.

• Author: Martorano, Roslyn F.
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

When Gov. Chris Christie of New Jersey chose not to renominate Justice John Wallace Jr. to the State Supreme Court in May, it was a case of political overreach. The situation is now a national disgrace, thanks to the governor, the State Senate president, Stephen Sweeney, and Justice Roberto Rivera-Soto. (1)

With America's twenty-four hour news cycle, media plays a major part in modern politics. The executive and legislative branches engage in media ventures so often, (2) it seems only "natural" this lust for information would creep into the government's most mysterious branch. Over the last several years, media backlashes forced state judges from the courts for perceived political actions. In Arizona, criticism forced the state's highly respected chief judge to resign after she merely circulated a letter to other judges. (3) She received the letter from Los Abogados Hispanic Bar Association (4) who cautioned against using terms like "illegal" and "alien" because the labels "establish" a brand of contemptibility." (5) After the Iowa Supreme Court opined on the legality of same-sex marriage, (6) interest groups from outside Iowa worked tirelessly to remove every judge running in the state's retention election. (7) In New Jersey, the move was more public and more political, but only tangentially tied to any specific court action.

In early May 2010, newly elected Republican Governor Chris Christie issued three press releases, which thrust the New Jersey Supreme Court and its retention policies onto the national stage. (8) For the first time since New Jersey ratified its 1947 constitution, the governor refused to reappoint a sitting justice of the state's supreme court--who is a registered Democrat. (9) Based on this executive action, within one year, the branches of government fractured and turned on each other. Tensions continue to run high between the executive and the judiciary. The legislature refused a fair hearing to the judicial nominee and called for the resignation of a sitting justice. (10) An associate justice authored the court's first abstaining opinion, wherein he charged the chief with unconstitutionally administrating the court. (11) Today, the court functions with two vacancies; the senate recently rejected two of Governor Christie's judicial nominations. (12)

1. THE NEW JERSEY SUPREME COURT

   I ask that each of us continue to hear cases with the integrity, scholarship, and independence that are the hallmarks of New Jersey's judiciary. (13) Scholars frequently praise the New Jersey Supreme Court for its thoughtful opinions; however, some instate pundits criticize the court's judicial activism. (14) Much of the praise, and criticism, can be directly tied to the state's judicial selection and retention policies. (15) Following World War II, New Jersey ratified a new constitution, which, in part, streamlined the judicial selection process. (16) The new process mirrored federal selection. (17) "The governor independently chooses a judicial candidate, who is then subject to legislative confirmation.'' (18) Unlike its federal counterpart, these judges do not serve life-terms; instead, they serve and must be reappointed every seven years until they reach seventy, the mandatory retirement age. (19)

   1. Appointments System & Brief History

      With this new process, elected officials in the executive and legislative branches adopted three ancillary policies. First, through "senatorial courtesy," a senator from a judicial appointee's home district may block the nomination. (20) If this occurs, no other senator will vote to confirm the appointee. (21) In previous years, this process did not apply to reappointments, but it appears to affect the current crisis. (22) The other policies reflect the intent behind constitutional language, reading: "[I]f reappointed he shall hold office during good behavior" until he reaches the mandatory retirement age. (23) Second, the court maintains "a tradition of political balance." (24) The governor--notwithstanding his personal political affiliation--selects an appointee of the same philosophy as the outgoing justice. (25) Third, the governor gives a justice the initial seven-year term to set his record. (26) So long as the justice acts with "good behavior" in this first term, governors will reappoint him or her until age seventy. (27) The justice would only fail to receive reappointment if he or she acted in an inappropriate or partisan manner. (28) During his administration, Christie's mentor, former Governor Tom Kean, explained the process:

      Judges have to be totally free to make up their minds on a particular case. They should not have to think about how their opinion will affect next year's election or even their reappointment.... Accordingly, there has not been a judge since the constitution was adopted in New Jersey who has been denied reappointment based on court opinions or political beliefs. The day that happens, the New Jersey judiciary will be undermined. And I was not going to be party to any such event. (29) Taken together, these provisions and policies relieve pressure on judges. They encourage sound legal decisions based on interpreting the constitution, statutes, and precedent.

   2. "Balancing" the Court

      Before and since becoming Governor, I was unambiguous in my intention to bring balance and change to the Supreme Court. My selection today is not a commentary on Justice Wallace. It is a fulfillment of my promise.... (30) Chris Christie campaigned for judicial change, and frequently commented that judges should earn their seats. (31) It was a perceptive move because his promise captured the political zeitgeist. Other citizens, pundits, and politicians criticized state court judges for the expected rhetoric: legislating from the bench. (32) Christie probably hoped the successful campaign strategy would lessen criticism if he removed judges without obvious cause. This was an important distinction, because the governor would have the ability to change four of the seven high court seats in his first term. (33)

      The relatively new court (the longest sitting justice was appointed in 1996) had seen three chief justices in three years. (34) The current gubernatorial term will see four more potential changes. First, Justice John E. Wallace, initially nominated for his first term by Democratic Governor James McGreevey, was up for re-nomination in May 2010. (35) Even if reappointed, Wallace was only eligible to serve until March 2012. (36) Second, Justice Roberto A. Rivera-Soto reached the end of his first term in September 2011. (37) Though a registered Republican, Rivera-Soto was also nominated by Governor McGreevey. (38) Third, in March 2012, the longest tenured associate justice, Virginia Long, reached the mandatory retirement age. (39) Justice Long is a registered Democrat, originally nominated by Governor Christie Whitman. (40) Finally, Republican Associate Justice Helen Hoens ends her first term in October 2013. (41) In effect, Governor Christie has the opportunity to nominate and/or change one sitting justice each year of his first term.

2. A THREE-RING CIRCUS

   Unless this action is somehow reversed, our courts will be reconstituted after every election, and their independence, their integrity and their prestige will be swamped by politics. (42) Governor Christie publicly stated that unseating Justice Wallace would be a major step on the path to correcting New Jersey state government. (43) The truth of this statement remains unproven. The very public move was the opening act of a media circus, and all three branches played a part. Even the traditionally quiet judiciary chimed in when Chief Justice Rabner released a rare public statement to other justices. (44) He praised Wallace and urged other state judges to continue their work without concern for future reappointment. (45)

   1. Ring One: Executive Branch

      The constitution gives us seven years to judge somebody, and my view is that each of those judges get their seven year record to make their case for reappointment. (46) When asked what the governor sought in a judicial nominee, he said, "I want someone who is extraordinarily bright and I want someone who will interpret laws and the Constitution, not legislate from the bench." (47) Despite this statement, his mentor, former Governor Tom Kean criticized Christie's decision: "I might have come down differently if I was governor. Probably would have.... [b]ut he's the governor and I respect his decision." (48) Tom Kean, although a staunch Republican, was also the first to appoint John E. Wallace, Jr., a registered Democrat, to the bench of the Superior Court in 1984. (49)

      1. Lessons From a Mentor

         Governor Christie frequently cites former Governor Kean as a mentor and friend. Tom Kean is a respected Republican, who advocates for issues across party lines. He endorsed judicial independence, worked tirelessly as Chair of the 9/11 Commission, and is a fierce advocate for climate change. (50) Kean has known Christie since his teenage years, and recently, acted as the "confidant" who reignited rumors Christie was considering a presidential run. (51) One online editorial told the tale of a fourteen-year-old Christie ringing the doorbell of gubernatorial candidate Kean's house in 1977. (52) The earnest teenager "heard Kean speak at Livingston High School" and pestered his mother until she took him to ask Kean "how to get into politics." (53) Kean took Christie out to campaign with him that very night. (54) According to political and media lore, they have been close friends ever since. (55)

         This mentor/mentee relationship seems odd in light of Kean's reputation as a strong defender of judicial independence. The most famous illustration occurred in 1986, during Kean's second term. (56) He faced heavy criticism from his party when he decided to reappoint Democratic Chief Justice Robert N. Wilentz. (57) The controversy was somewhat unusual because "Wilentz's intellectual and...