Wednesday, December 29, 2010

Justice Rivera-Soto and the Rule of Law

As previously discussed on this blog, Governor Christie declined to re-nominate Supreme Court Justice John Wallace to a tenured position on the Supreme Court, a seat the 68 year old jurist would have held for 22 months. Christie did so because Wallace would not commit to overturning the State's school-funding rules as established in the Supreme Court case of Abbott v. Burke. Although many called this a shocking politicization of the judiciary by the Governor, no one argues that the Governor is not within his rights under the State Constitution, which provides that the Governor nominates all judges (with the advice and consent of the Senate) and that Supreme Court Justices serve for an initial 7 year term.

Senate Democrats, led by Senate President Steve Sweeney, have refused to give Governor Christie's nominee to replace Justice Wallace, Anne Patterson, a hearing. Sweeney has said he will hold up the nomination until the expiration of the 22 month period Justice Wallace could have served. To avoid allowing the Governor the option of naming a recess appointment, Sweeney is keeping the Senate in continuous session. While many have argued that Sweeney is unduly politicizing the judicial nomination process, no one has successfully argued that Sweeney is violating the Constitution.

After the Supreme Court deadlocked 3 to 3 on a case about the legalization of gay marriage, Chief Justice Stuart Rabner appointed Chief Appellate Judge Edwin Stern to the Supreme Court. In so doing, Rabner relied on the following Constitutional power:

"The Supreme Court shall consist of a Chief Justice and six Associate Justices. Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court."

Recently, Supreme Court Associate Justice Roberto Rivera-Soto announced that he will abstain from any decision in which Stern participates. Rivera-Soto argues that Rabner only has the right to appoint a replacement when the Supreme Court lacks a quorum, i.e., has fewer than 5 Justices. In other words, Rivera-Soto reads the Constitution as meaning that the Supreme Court shall consist of a Chief Justice and not less than four nor more than six Associate Justices, and the Chief Justice shall assign a replacement judge when necessary to make a quorum.

In truth, Rivera-Soto has raised a valid point of Constitutional construction. And if he had legal standing to place that question before the court, as someone who has been harmed by a misinterpretation of the Constitution, he would have legal redress available. He could bring a lawsuit seeking a declaratory judgment as to the meaning of the Constitutional language in question.

As a seasoned jurist, Rivera-Soto knows he has no legal grounds to challenge the Chief Justice's decision; hence, his resort to self-help. However, there is no Constitutional support for an Associate Justice's refusal to hear cases on any grounds, let alone the grounds that the Chief Justice is misinterpreting the law. On the latter issue, the Constitution is clear: "The Chief Justice of the Supreme Court shall be the administrative head of all the courts in the State."

So, what is to be done about Justice Rivera-Soto? He is in his initial 7 year term. Had he been given tenure he would hold his post in good behavior and thus be subject to impeachment; however, it is not clear that an Associate Justice in his initial 7 year term may be impeached, as the conflict between the Constitutional provision allowing for impeachment and the provision allowing for a 7 year term is not resolved within the body of the document. Were the Supreme Court to certify Rivera-Soto incapacitated, the Governor would be obligated to form a 3 person commission to consider whether or not Rivera-Soto should be retired; arguably, though, Rivera-Soto does not meet the legal definition of incapacitated.

Thus, it seems that little can be done to remove the Associate Justice. It is possible that Chief Justice Rabner may appoint a replacement Justice to render opinions during which Rivera-Soto has promised to abstain. In fact, that may be the only solution, if in fact it could be called a solution.

And so New Jersey finds itself in the midst of a Constitutional crisis. Who the ultimate winners and losers will be remains unclear, other than the taxpayers who have already lost.

But it seems that there is a silver lining for Associate Justice Rivera-Soto. A Wall Street Journal editorial praised the Justice for refusing to participate in a political impasse, giving credit to the Justice for standing up against a power grab. One could well imagine a future in politics for the Associate Justice who just said "no."

Tuesday, December 21, 2010

Will Barbour's Flub Be Christie's Gain?

In a previous post I posited that Chris Christie would not run for president in 2012 because Haley Barbour was running. As head of the Republican Governor's Association, Barbour spent $7 million on Christie's gubernatorial campaign, Barbour has proven to be a staunch Christie supporter, creating a 20 minute RGA infomercial on Christie's election. And since Christie is primarily a fundraiser, he will never bite any hand that feeds him; thus, he is not about to challenge Barbour for the Republican nomination.

But it seems Mr. Barbour has made some racially insensitive comments, saying (among other things) that he didn't remember segregation as being so bad. It may be that Barbour's best contribution to the 2012 campaign would be as fundraiser.

So, should Barbour concede that he is not ready for prime time, would he support a Christie run?

Thursday, December 9, 2010

Quote Of Note: Tom Emmer Gets It Right

Minnesota is becoming my favorite state (next to New Jersey, that is).

In November, both houses of Minnesota's legislature went from Democratic majorities to Republican control. However, the governorship went from a Republican to a Democrat, by a narrow margin. I find that fascinating.

Regarding the gubernatorial election, yesterday Republican Tom Emmer conceded to Democrat Mark Dayton after a recount confirmed Dayton's razor-thin lead. In so doing, Emmer precluded the possibility that Minnesota's next governor would not be seated by January 3rd, leaving Republican Tim Pawlenty in the governor's chair until the election was resolved. Such an outcome would have echoed Minnesota's contested 2008 senatorial campaign, which caused an 8 month delay in seating Senator Al Franken.

The Wall Street Journal quotes Emmer as saying the following:

"Some have suggested that I should consider contesting the election, if any good faith basis exists, because Minnesota might then have a Republican governor and a Republican legislature until this contest is resolved. I disagree. We must address questions raised by recent elections in this state, but I do not believe a delay in seating the next governor will help unite us or move our state forward."

We should all applaud Mr. Dayton's decision to put the interests of Minnesota voters over his personal ambitions and partisan politics. In so doing, he proves himself to be someone who belongs in elected office and we should all look forward to his future electoral successes.

Wednesday, December 8, 2010

Education Reform 2.0: Will Chris Christie Make The Grade?

For some time now, it has been clear that New Jersey hearts Michelle Rhee. Rumor has it that Clifford Janey was axed to make room for Ms. Rhee to do for Newark schools what she did in D.C., a plan derailed when Mark Zuckerberg donated $100 million provided Cory Booker got the credit. Chris Christie then offered Ms. Rhee Bret Schundler's old job as Education Commissioner, but by then Ms. Rhee had soured on the Garden State.

In the interim, D.C rejected Ms. Rhee's divisive approach to reform by deciding not to re-elect Adrian Fenty for mayor. Rhee resigned shortly after her sponsor, Fenty, was defeated, and has announced the formation of a national school advocacy group.

And in short order, D.C. has moved beyond the Rhee era. D.C. teachers elected a new union head who wants to overhaul Ms. Rhee's teacher evaluation system. Interim D.C. Chancellor Kaya Henderson is open to tinkering with the system. Randi Weingarten, head of the American Federation of Teachers, sees the leadership changes in D.C. as a chance for a fresh start and a collaborative (as opposed to a combative) approach. It is fair to say that D.C. is now on its second wave of education reform.

There does seem to be a trend away from pugilism in the education debate. Controversial New York City Chancellor Joe Klein has resigned to take a job with News Corp. When Mayor Bloomberg sought to replace Klein with Cathleen Black, a candidate who had no education experience, he was stymied until he agreed to pair Black with an experienced education professional as a deputy. Thus, New York City has also chosen a more collaborative approach to education reform.

With Rhee and Klein out of their chancellor positions, that leaves only Chris Christie as a national figure demonizing teachers unions. Playing the bully has been so successful for Christie that it seems hard to imagine that he will want to join the second wave. And it also seems hard to imagine Barbara Keshisian making peace with the Governor any time soon.

So only time will tell if New Jersey will catch the second wave of education reform and move beyond its Rhee rah-rah-ism, or if New Jersey's education reform efforts will stay stuck in a partisan quagmire.

Quote Of Note: A Christie-Style Expansion Of State Power

It seems Republicans in North Jersey are peeved with the Governor's proposed cap on school superintendent pay. Rich towns want to be able to hire good superintendents to protect the quality of their schools and the value of their homes.

It seems these Republicans believe that schools should be run by local municipalities, and not by the State. Which is consistent with the Republican ideal of smaller government.

With respect to the pay cap, the Wall Street Journal quotes Brigid Harrison, political science professor at Montclair State University, as saying that "[i]t's a Chris Christie-style means to an end -- expanding state power to cut local government costs -- that could be hard for traditional conservatives to defend. This flies in the face of some of the ideological considerations that really have informed many of these decisions."

Quote Of Note: Bill Pascrell on the Tax Bill Compromise

President Obama has agreed to a temporary extension of the Bush-era tax cuts to all Americans, even those making over $250,000 a year. Liberals are outraged at Obama's caving in to the Republicans.

As reported by the Wall Street Journal, in describing the President's decision as a mistake, Bill Pascrell (D.NJ) said: "If this is the playbook for the next two years, we want out because Democrats in the House are irrelevant."

Quote Of Note: Pastor Tom Brown of El Paso

El Paso voters have approved a ballot measure preventing the city from providing health benefits to the same-sex partners of public employees. In addition, due to the vagueness of the wording of the measure, El Paso is now forbidden to provide health benefits to retired policemen and firemen.

As reported by the Wall Street Journal, the measure asks El Paso residents to embrace "traditional family values" by limiting benefits to "city employees and their legal spouses and dependent children."

The ballot measure was promoted in large part by a conservative pastor named Tom Brown of the Word of Life Church. Brown has promised to oppose any attempt to amend the ballot measure to allow for same-sex benefits.

Says Brown: "I'm feeling a call from God to get more involved in our government."

This has nothing to do with New Jersey, I just loved the quote.

Monday, December 6, 2010

Wait Just A Minnesota Minute

In the Minnesota gubernatorial election, it seems that an almost-concluded recount will confirm that the Democratic-Farmer-Labor candidate Mark Dayton has beaten Republican Tom Emmer. By a very, very narrow margin, mind you, but still, by enough.

Why does this matter to New Jersey? Because this race decided who was to succeed Tim Pawlenty as Governor. Like Chris Christie, Pawlenty is a conservative Republican who governed a blue state. Pawlenty and Christie have pursued similar agendas -- alleging to have balanced budgets without raising taxes and catering to social conservatives. So, if history is unkind to Pawlenty's legacy in Minnesota, it may give Christie pause in pursuing the same policies as Pawlenty. Or at the very least provide Christie's detractors with some grist for their mills.

And Pawlenty leaves some pretty big issues on the table. For example, although Pawlenty claims to have balanced Minnesota's budget and to actually have a $399 million surplus, he did so in part by deferring some payments to the next 2 year budget cycle, such as K-12 education expenses. So not only does Minnesota's structural deficit remain, but overdue bills from the Pawlenty administration are driving the deficit for the next budget cycle to $6.2 billion. Which echoes Governor Christie's refusal to put aside money for public employee pensions and the State's structural Transportation Trust Fund deficit.

Interestingly enough, Dayton confirmed that, if elected, he would raise taxes on Minnesotans. Kind of like that other famous Minnesotan, Walter Mondale. But apparently, Minnesotans like hearing the truth (it was the only state to go for Mondale in his 1984 presidential campaign against Reagan). So if Pawlenty leaves office and the new Minnesota Governor starts saying that Pawlenty's policies were so much smoke and mirrors, leaving Minnesota in a worse state than before, so that tax increases are the only solution, it could be a message that resonates with moderates.

There may yet be some drama left for Minnesota as a result of this year's gubernatorial election. If Emmer challenges Dayton's win in court, Dayton may not be confirmed by January 3. In which case Pawlenty says he will stay on.

Minnesota has until January 15 to decide whether or not to accept $1.4 billion in Medicaid funds tied to the new federal health care law. If Pawlenty is governor on January 15, he will decline the money -- even though this was a big issue in the campaign and the candidate who said he would accept the money, Dayton, won. The reason Pawlenty won't accept the money is because he personally does not believe in big government and thus must decline the money -- which translates into a statement that accepting ObamaCare money will anger the tea party activists Pawlenty needs to survive the 2012 Republican presidential primaries.

So stay focused on Minnesota is you want some help reading New Jersey's political tea leaves.

Sunday, December 5, 2010

Finally, Democrats Say It Out Loud: It's About Jobs, Stupid.

I heard Senators Reid and Kerry both say, on Meet The Press, that tax cuts for the rich have not created any jobs over the past ten years, and thus it is foolish to continue to lower taxes on the rich for the purpose of creating jobs.

Says Senator Kerry, we cannot "cut" our way to competitiveness, we need to invest in our future.

Here in New Jersey, Steve Sweeney and Sheila Oliver are promoting a "Back To Work NJ" legislation program of about 30 bills. These bills include reforming business tax codes to base corporate business taxes on a company's sales in New Jersey (called "single sales factor"), eliminating a company's share of employees and physical assets in New Jersey as factors in determining a tax bill; a job training program for the unemployed which allows for up to 24 hours a week of workplace training from a potential employer for up to six weeks; and giving senior citizens whose total earnings fall under $100,000 an exemption from state income taxes on any income from a pension or deferred compensation plan.

Finally, a major political party recognizes that there is more to this debate than discussing how much to tax and how much to spend. Like the recent debt commission report, there is the understanding that strategic tax changes, strategic spending and fresh ideas are what we need. Please, can we stop having the same discussions we've been having since Reagan's first term.

I can only hope that this is the beginning of some adult conversations in the run-up to 2012.