By Juliet Fletcher | The Record
Governor Christie’s public display of contempt last week for the routine review of judicial nominees by the state bar association shocked many.
It shouldn’t have. Christie’s tenure has been marked by tirades against individual judges, threats to ignore the court’s most anticipated rulings and the occasional second-guessing of when judges should and should not recuse themselves on specific cases.
Christie has refused to cooperate with the bar association on an agreement to review judges that he himself had signed and also attacked the unwritten custom of senatorial courtesy when it comes to home-county senators having to sign off on the governor’s nominees before they can come up for a hearing.
Critics have complained that Christie’s moves have interfered with undecided cases and put pressure on judges to behave a certain way. In two turbulent years, Christie has shown what he meant when, as a candidate, he warned he wanted to bring the court down from what he said was its pedestal.
“Where we’ve gotten off the tracks here is that the Supreme Court has acted like a superior branch of government, not a co-equal branch of government,” Christie said in April 2009.
In a series of interviews at the time, Christie laid out his intention to put the Supreme Court on an “equal” footing with other branches of government.
“I think, candidly, the legislative and executive branches have been too timid in asserting themselves with the court,” said Christie, a lawyer and former U.S. attorney.
As recently as Feb. 9, Christie showed that attitude when he called the justices considering state funding for public schools – one of New Jersey’s biggest and longest-running legal issues – “a bunch of people on the Supreme Court who don’t know the first thing about education funding.”
Legal scholars say acrimony over state courts is not new nationwide – but it’s only recently emerged in New Jersey, at least at this sustained and prominent level. For decades, New Jersey’s court system, particularly its state Supreme Court, had been seen as a national model for its handling of legal issues and for its avoidance of partisan political interference.
This pattern of politicizing the judicial branch across the country is leading to loss in public trust in the courts, says one analyst tracking the issue. And that loss of trust and increased partisanship come at the same time as lawmakers, activists and others try to push state policies through the courts to test political ideas to their limits.
“New Jersey four years ago wasn’t even on our radar screen,” said Charles Hall, communications director for Justice at Stake, a non-partisan group that tracks political attempts to influence, sway or shape the courts.
The organization’s blog highlighted a dozen Christie statements last fall and early this year, all criticized by third parties – newspapers, legal scholars or concerned citizens – for challenging judges and their rulings.
“Really, all courts have is trust,” Hall said. “Alexander Hamilton wrote, courts do not have the power of the purse. They do not have the sword. They really have to rely on the confidence of the people. So when every side starts bashing and delegitimizing the courts, because they don’t like a ruling or they don’t like an appointment, it sends a message to the public that courts are just like any political branch of government. Courts lose the sense that this is the one place where it’s free of the back-and-forth rhetoric, the politics.”
Christie’s actions are matched by antagonism from Democrats here, too, Hall said.
The uptick in political slings at the judiciary comes as some of the state’s most attention-grabbing policies – from education funding to pension reform, and social issues like affordable housing and same-sex marriage – are taken to court.
But persistent critics of the system have praised Christie’s bucking of some court traditions.
“We should welcome a debate about what the role of our courts should be in relation to the other, co-equal branches of government, and the perfect time to do it is when we are choosing justices for our state’s highest court,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance.
Among Christie’s high-profile moves, most have come amid cases that involved the state as a party.
In 2011, Supreme Court Associate Justice Barry Albin questioned school district officials about the effects of Christie’s move to lower funding to public schools. In one exchange during the months-long case, the state argued it could not afford to fund schools more fully. Albin asked about whether a millionaire’s tax – a Democratic priority – would offset any of the cuts. In a string of town hall appearances, Christie then accused Albin of “legislating from the bench,” using it to highlight his arguments against the court.
Right before the court ruled that the state must abide by earlier orders on education funding, Christie said he was considering whether to ignore the ruling in his state budget, calling compliance an “option.”
In November and December, Christie made a public point of attacking Superior Court Judge Paul DePascale of Hudson County, who filed suit to challenge Christie’s pensions and benefits reforms, on the grounds that it violates the state constitution, which blocks any cuts to judges’ salaries.
In attacking DePascale and the presiding judge in the case, Linda Feinberg, Christie’s message was that judges should be treated no differently than any other public employees and if necessary he would move to change the state constitution to cut out the clause saying state judges’ salaries “shall not be diminished during their term of appointment.”
In that case, Christie repeatedly called Feinberg’s rulings “self-interested.” He also questioned Stuart Rabner’s decision to recuse himself from the case, saying he was disappointed and would have preferred Rabner to lead rather than Associate Justice Virginia Long.
In January, Christie announced his two nominees for the state Supreme Court – Bruce Harris and Phillip Kwon. He later had to explain that Harris had “volunteered” to recuse himself on gay-marriage cases.
Amid questions about Kwon’s family business, meanwhile, Christie has Democrats and one Bergen County Republican hesitating to release their right of senatorial courtesy against the nominee.
Christie has called the tradition of courtesy “an anachronistic system that needs to go away.”
In December, Christie said in an interview with The Record that he could understand that nominees whose appointments are held up by courtesy might feel “motivated to take that to the courts.”
In 2010, Christie faced another round of criticism when he refused to grant tenure to Associate Justice John Wallace, the first African-American judge to serve on the Supreme Court and the first justice ever to be turned down for reappointment.
But Christie also gained national attention in 2011 for defending another Superior Court nominee, Sohail Mohammad, whom Tea Party Republicans attacked for his Muslim faith and his legal representation of Muslim-Americans wrongly arrested after the 9/11 attacks.
A week ago, Christie declared he would not defer to the state Bar Association, vowing to support his nominees Kwon and Harris regardless of whether they pass the association’s vetting.
“Given the people they’ve approved before, they have no factual basis to turn them down,” Christie said.
That position gained support from court critics like Rayner.
“It’s important to remember that the state Bar Association is an organization that represents attorneys, not the broader business community or the public. Their expertise is informative, but it should not be the final word on the qualifications of judges,” he said.
The bar association will conduct its review of the Supreme Court nominees, which takes about 20 days, but do the process in private, spokes¬woman Kate Coscarelli said Friday.