Former New Jersey Supreme Court Justice Gary Stein told NJ Today Managing Editor Mike Schneider that while Supreme Court nominee Judge Faustino Fernandez-Vina is getting a hearing tomorrow, there still are vacancies to fill within the Supreme Court.
Hearings to fill two vacancies within the court have been on hold but Fernandez-Vina’s upcoming hearing by the Senate Judiciary Committee is not to fill those vacancies but to replace the departed Justice Helen Hoens. The unfilled vacancies for Justices John Wallace and Virginia Long have nominees but those hearings have yet to occur.
“The two vacancies that are unfilled and have been unfilled for a while, Mike, are Justice John Wallace, who was not reappointed when there was only two years remaining on his term,” said Stein. “And Justice Virginia Long. And the nominees to replace those two, I think Judge Bauman and Robert Hanna, have been waiting anxiously for hearings.”
Stein said it’s unusual that Hoens wasn’t reappointed. “This is the first time in 60 years that any governor has not renominated a sitting Supreme Court justice,” he said.
When Gov. Chris Christie decided not to renominated Hoens, he said it was because she was not likely to get the votes necessary and that her image could be damaged. Stein said Christie should have kept Hoens, who had served in the judiciary and the Supreme Court for seven years and was one of the most conservative voices on the court.
Stein said Christie’s decision not to renominate Hoens is unprecedented. In the history of the Supreme Court since the 1947 constitution, no governor has taken such an action. For Stein, the choice to replace Hoens has demoralized the judiciary.
Stein believes that New Jersey’s independent judiciary is currently being threatened.
“You have to think of it in very simple terms,” said Stein. “If you’re a judge and you don’t have tenure and you’re called upon to make a decision in a case that has perhaps political implication, maybe a gay marriage case or a case involving affordable housing or a case involving school funding or other cases perhaps more mundane but nevertheless with some political significance. If the tradition is as it had been in the past, that no judge had to worry about his or her decisions and didn’t have to be concerned about reappointment being denied based on those decisions, then you have a clear conscience, you do your job.”
Stein said that he does not know if judges are making decisions based on fear of political consequences, but he is concerned the atmosphere around the judges has changed.
“The court I sat on for 18 years had to decide death penalty appeals and our court reversed 30 consecutive death sentences,” Stein said. “That was not popular and had we done that in an atmosphere in which justices or judges didn’t know if they’d be reappointed, that would have been more difficult. It would only be natural for a judge to take that into account when you make those decisions. So the atmosphere has changed.”
With the case of gay marriage now to be decided within the Supreme Court, regardless of the vacancies, Stein believes that members of the Supreme Court will make a decision without any fear of political repercussions. As for long term repercussions, he is concerned that not reappointing justices can cause damage.