The Three-Ring Circus: New Jersey's 2010 Judicial Retention Crisis

Article excerpt

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)

I. 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)

A. 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. …