There have been more than a few exchanges over the last four and a half years between Governor Chris Christie and Democrats in the State Legislature. They have clashed over annual budgets. They have disagreed on tax increases and raising the state's minimum wage. But, one of the more complex battles between the two sides has revolved around Christie's approach to nominations and reappointments for the state's judicial branch.
The first major move occurred early on in his first term when he made an unorthodox decision based on history to not give tenure and reappoint Justice John Wallace Jr., the only African American member of the state Supreme Court, when his term expired. By choosing to base his decision largely on his disagreement with Wallace's ideology instead of following precedent, it has created a constant struggle for Christie to fill voids in the state's highest court. There have been some concessions and agreements replacing a couple justices but they have far from solved the main issue of Christie trying to create a court how he prefers it to look.
There have been multiple nominees either denied or not even given a hearing.
Democrats have argued that there should be a balanced ideology among the court members instead of a conservative tilt based on how Democrats have viewed Christie's choices. Democrats have also argued for a balanced demographic of male and female and white and minority members. Two of the justices to leave the state's highest court under Christie have been an African American in Wallace and a Hispanic in Roberto Rivera-Soto, who chose to retire. While Christie did choose to reappoint Chief Justice Stuart Rabner, which angered some conservatives; that is only one step in the right direction to potentially moving the state beyond an ideological battle over the state Supreme Court.
While the state's politicians exchange words and deals, the state's largest group of lawyers rallied for an adjustment to the state's constitution in the form of an amendment to protect the job security of the state's Supreme Court justices as well as its judges. On the national level, justices in the Supreme Court have lifetime appointments. Federal judges also have the same level of job security.
The state's Bar Association saw Christie not only refuse to reappoint Wallace but also do the same to Justice Helen Hoens and they felt the time had come for a change to the current system and guarantee tenure for judges unless they prove to be unfit. Currently, justices and judges are given an initial term before they can be given a lifetime appointment. It was pretty much an automatic procedure of justices and judges being reappointed if they were "fit" until Christie came along.
The Bar Association wants to see a ballot initiative this Fall that would allow voters to make a needed change to the state's constitution. While most of the state was reelecting Christie last Fall, they were also overriding one of his decisions on not raising the state's minimum wage level. Voters approved a ballot initiative that has already begun a gradual increase in the state's minimum wage over time. The state's minimum wage rate went from $7.25 to $8.25 as of January 1st of this year.
As Bar President Ralph Lamparello would state,
The amendment would formalize the original intent of the state constitution. To assure the independence of judges, the framers made clear that denial of reappointment was only for those found to be unfit.
Since 1947, the state constitution has required Supreme Court justices and Superior Court judges to serve an initial seven year term before the governor decides to reappoint them or not and have the state Senate reconfirm them.
The two justices denied tenure, Wallace and Hoens, were a Democrat and Republican respectively. While Wallace was someone who Christie viewed as someone from the opposite ideology as himself, he justified denying Hoens reappointment by his assumption that Democrats in the state Senate would play political games with him and not approve her reappointment.
The Bar Association could not sit idly by any longer as they watched both of these moves break 63 years of precedent in the state.
Currently, the only things outlined in the state constitution are that judges have to be reappointed and only continue in their position if they are deemed to practice "good behavior". They must also retire at age 70.
The amendment being proposed by the Bar Association would stipulate that judges on state courts be "reappointed by the governor with the advice and consent of the Senate unless they have demonstrated unfitness for such reappointment".
Former Chief Justice Deborah Poritz has previously called for judges getting lifetime tenure from the start after seeing Hoens become the second justice denied tenure.
It seems that both Christie and Senate Judiciary Chairman Nicholas Scutari (D-22) are lukewarm at best to this proposal and potential amendment.
With two highly qualified sitting justices denied tenure and what looks to be a continued struggle over the state's highest court, a constitutional amendment that voters have to approve is something certainly worth considering. It would put an end to what has suddenly become ambiguity over the state's courts and their justices and judges and their future. Based on the outcome of the 2017 gubernatorial election, this might all be a moot point as the next governor could follow the same strategy as all governors from 1947 to 2010. For now, it is worth being discussed for the credibility of the state's courts and future of the judicial branch in the state.