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."

Quote of Note: It's Still The Checks and Balances, Stupid

Governor Christie chose to honor the confirmation of Elena Kagan to the U.S Supreme Court by reminding New Jerseyans that our State Supreme Court remains shy one Justice. Said Christie spokesman Michael Drewniak:

“From nomination by President Obama to Senate confirmation yesterday, it took just 88 days for Elena Kagan to become the 112th Justice of the Supreme Court. Back at home, after 96 days without a hearing, there is no good and valid reason for the failure to give [New Jersey Supreme Court nominee] Anne Patterson the same consideration and deference.”

What Drewniak fails to mention is that there is no good and valid reason why there is a vacancy on the State Supreme Court to begin with.

Governor Christie chose not to re-nominate Justice John Wallace to the Court because the Governor wants to pack the Court with Justices who will overturn Abbott v. Burke and the line of cases that followed it. These cases require the State to re-allocate suburban property taxes to urban school districts. Had he been re-nominated, Wallace would have been able to serve for a little over 2 years before reaching the mandatory retirement age.

In response to charges that Governor Christie was politicizing the court by failing to consider Justice Wallace’s candidacy solely on his qualifications and not on his politics, the Governor claimed to have the right under the State constitution to boot Wallace. The Governor is a firm believer in using every arm of government as a political tool, just as Karl Rove used the Justice Department under Alberto Gonzalez as a political tool.

So how is it that Wallace has not been replaced yet? It seems that the same State constitution that allowed the Governor to sack Justice Wallace lacks a requirement for the Senate to confirm any replacement nominated by the Governor. Senate President Steve Sweeney says he will not consider swearing in a replacement until Wallace’s term has expired. i.e., for about 2 years.

Moreover, it seems that the Constitution was drafted with this type of stand-off in mind. Chief Justice Stuart Rabner has the right to leave Wallace’s seat open or temporarily elevate the most senior Superior Court judge or a retired state Supreme Court judge. In other words, the Constitution includes a check on the Governor’s power over the judiciary.

So, if the Governor wants to exercise the full range of his Constitutional powers, he has no right to cry fowl when the legislature and the judiciary follow suit.

And what of Anne Patterson? At first glance, she seems to be an innocent victim. However, it is clear that she has promised the Governor that she will vote to overturn Abbott v. Burke and its progeny. In other words, she is prepared to decide cases on political factors and not solely on the facts of the case itself. Which means she has proven herself unworthy to sit on any bench anywhere.