NJ Gov Christie Eyes Three Scenarios to Remake the Supreme Court in His Image

(AP Photo/Mel Evans)It's an ongoing war, but the next battle over the Supreme Court begins with NJ Gov. Christie's decision whether to grant Chief Justice Stuart Rabner (a Democrat) tenure. The governor has already twice gone against tradition and denied tenure to qualified justices. After that decision, it's a battle between the Governor who nominates justices and the Senate which confirms or rejects them, or just holds up their hearings indefinitely.  

There are three scenarios facing Christie. He certainly wants to deny tenure (before June 29) to Chief Justice Rabner and nominate a Christie-friendly Chief Justice. The chief is a key position. He or she is responsible for the administration of all courts in the State, exerts influence over Associate Justices, and has the sole discretion to assign senior members of lower courts to fill vacancies on the Supreme Court.

On the current seven-person court there are two Democrats, two Republicans, one Independent (who worked in a Republican administration and was appointed by a Republican Governor), and two temporarily assigned (TA) judges from the Appellate Court. Christie has made no secret of his desire to remake the court in his image. The Senate President and Judiciary Committee seek a balanced court membership between the two parties. The battle is over future high-stake rulings on controversial subjects. There will be tough bargaining before any Senate votes are cast.

Listed below: three scenarios, the bargaining, what each side wants, and information about the current justices.  

  •  Scenario I: Christie does not grant tenure to Chief Rabner and nominates his own Chief Justice
    Perhaps, Jeff Chiesa? At this point, there are now one Dems, two Republicans, one Independent, and three vacancies. Christie would like to fill the vacancies with three Republicans (one as Chief Justice and two others), leaving the court with five Republicans, one Democrat and one Independent. Ain't gonna happen. The Senate would have to confirm the Chief Justice, as well as the two new justices. For the governor to get his own Chief, (by refusing tenure to Rabner which will infuriate the Democrats) the Senate would insist on him nominating two from the left, which would create a court with a 3-3-1 split. Christie would not like such an arrangement, and Democrats would be upset with anything less. In the case of a complete stalemate, the court then operates at 2-2-1 with three TA justices who, as time goes on, will be assigned by Acting Chief Jaynee LaVecchia (I). (The Acting position is determined by seniority based on date of oath of office.)
  •  Scenario II: Christie denies tenure to Rabner and nominates for elevation one of the current Republican justices. This leaves the court with 1 Democrat, two Republicans, one Independent, and three vacancies. The Senate would have to confirm the nominee elevated to Chief Justice and would likely accept one new Republican justice if the other two were Democrats. Such would balance the court as 3-3-1, but with a Republican Chief Justice. Christie would want one more from the right, but that changes the court makeup significantly to 4-2-1.
  •  Scenario III: Christie grants tenure to Chief Rabner who remains as Chief Justice. In this case the makeup remains the same as it is now with two R's, two D's, one I, and two TA's. It would be reasonable to both sides if the additional nominees include one R and one D, retaining a balanced court. Christie of course would like both nominees to be Republican giving the Republicans a 4 to 2 superiority.

In addition to appointing his own Chief Justice, in all of these scenarios Christie would want the 4 to 2 superiority, but through pre-bargaining there is the possibility of three justices from both sides on the court, in addition to the one independent. Christie's screw-ups in the past leading to federal and state investigations, with bad press and lower polling, makes him a weaker, but still a formidable governor. He wants a right-leaning judiciary to support his conservative agenda. Also, he probably still harbors the desire to be President and it would certainly help him in the primaries if he can remake the court and even obtain arch-conservative rulings.

The Democrats would prefer four Dems and two Republicans, which is probably not realistic, but should not permit it to flop the other way. Christie has already harmed and intimidated the Supreme Court enough by denying tenure twice, which only creates concern (and can prejudice the votes), among untenured judges. Let's hope he retains Chief Rabner and accepts a 3 to 3 split. But he will be spoiling for a fight, and the Senators have to put on their strongest armor.

In order of descending seniority based on date of oath of office.
(Sources: here and here.)

  • Chief Justice Stuart Rabner (Democrat) sworn in June 29, 2007, appointed by Gov. Corzine (D), with his initial seven year term expiring June 29, 2014. If granted tenure his mandatory retirement is June 2030.
  • Associate Justice Jaynee LaVecchia (Independent) sworn in February 1, 2000, appointed by Gov. Whitman (R) and granted tenure in 2007 by Gov. Corzine (D) with her mandatory retirement in October 2024.
  • Associate Justice Barry T. Albin (Democrat) sworn in September 18, 2002, appointed by Gov. McGreevey (D) and granted tenure in 2009 by Governor Corzine (D), with mandatory retirement in July 2022.
  • Associate Justice Anne M. Patterson (Republican) sworn in September 1, 2011, appointed by Gov. Christie (R), with her initial seven year term ending September 1, 2018. If granted tenure her mandatory retirement is April 2029.
  • Associate Justice Faustino J. Fernandez-Viña (Republican) sworn in November 19, 2013, appointed by Gov. Christie (R), with his initial seven year term expiring November 19 2020. If granted tenure his mandatory retirement is February 2022.
  • Judge Mary Catherine Cuff (temporary assignment since May 2010) was appointed to Superior Court by Gov. Kean (R) and granted tenure by Gov. Whitman (R), and is an Appellate Court Judge.  
  • Judge Ariel A. Rodriguez (temporary assignment since March 2012) was appointed to Superior Court by Gov. Kean (R), granted tenure by Gov. Florio (D), and is an Appellate Court Judge.
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