The United States Supreme Court’s not alone in having a vacancy unfilled because lawmakers are blocking a nominee. The same thing is happening in the state Supreme Court. It stated in 2010, when Gov. Chris Christie dropped Justice John Wallace. And all four people he nominated as replacements were blocked by the state Senate president. Now Christie’s nominated David Bauman. And the feud’s been reignited. NJTV News Correspondent Michael Hill spoke with New Jersey Bar Association President Miles Winder III.
Hill: This is unprecedented. Why is this?
Winder: Well, it started about seven years ago when the governor determined not to reappoint John Wallace. John Wallace is a Democrat from South Jersey to the Supreme Court of New Jersey. And then the governor went on to pick a fight with a couple of Supreme Court justices and criticized some superior court justices, but at the time the Senate president, Steve Sweeney, said he was not going to fill Wallace’s seat. That Wallace was a Democrat and he was not going to allow Sweeney to appoint a Republican, which would essentially pack the court. When the governor came back from his presidential tour, he decided — well he may still be on his presidential tour, I’m not sure — but he decided to pick the fight again with Sen. Sweeney and he nominated David Bauman, who is a superior judge to the Supreme Court. The Constitution says number one that the governor shall nominate and number two that the Senate shall advise and consent to the nominee.
Hill: So who’s not holding up their end of the bargain at this point? Sounds like the Senate is not.
Winder: Well, yes but it gets worse and this is where we could really have a crisis that may be an extraordinary crisis because in his press conference about two weeks ago the governor said that there will be ramification and then he went on to say that not only would there be ramifications but that if you’re not dealing with certainly more than the Supreme Court which means that to everybody in the judiciary that the people who are up for reappointment, that is their appointment for tenure, that they will not be reappointed by the governor which means that you have 23 judges coming up before the end of the year in addition to 42 vacancies we have now and perhaps another 20 that are going to retire, you have an enormous number of judges that won’t be there.
Hill: And that means backlogs will increase.
Winder: Not only backlogs will increase, the courthouse doors are going to shut in some places. I mean, that’s possible if the governor makes his threat valid. If he doesn’t do something and the Senate and the governor don’t do something together to make sure that there are no ramifications for New Jersey.
Hill: I compare this to what’s taking place in Washington with the president’s judicial nomination to the Supreme Court and I look at the situation in Trenton and when I hear politicians talking about they don’t want the courts stacked, they don’t want this, to a certain extent I say you have to understand as a politician, as an elected lawmaker, this is more or less the voters’ choice. They voted for this governor, they voted for this president, knowing full well that part of the responsibility of being president, of being governor, is making a judicial appointment.
Winder: Well, that’s true but there’s a difference, actually a substantial difference, between the federal case and New Jersey. The federal case with the death of Justice Scalia you have a four, four, four — in other words there are eight people on the court so if they have a split that’s right down the middle four, four is you’re going to have the lower courts’ decisions being the ruling decisions, even if they’re different from circuit to circuit. In New Jersey, in the 1947 Constitution, the chief justice was given the power to call up a person from the superior court appellate division and we have a very capable judge, Mary Catherine Cuff who is there now, sitting on the Supreme Court, so we won’t have that happen. Traditionally in New Jersey we’ve had an evenly split court — that is a court as four or three or four on one party and it may be an Independent — but right now Steve Sweeney is trying to do and in fact he has said that he does not want to use Wallace’s seat to allow the governor to bully the Senate into breaking that number, that is breaking it down so that we have too many Republicans in the court.
Hill: Quickly Mr. Winder, how do you see this being resolved?
Winder: The governor and the state senator and the Senate doing their jobs that they’re required to do under the Constitution and that is if the governor were to negotiate with the senator, I know they’re good friends, and I think that they would do well to negotiate and have this come out being a settlement between the two of them. I’m sure that they could both walk away from this situation without injuring the court system. Let me say one more thing because this is important. I was at an affair the other night in Hudson County where I was with some judges and some of the judges were close to retirement age and they said to me you know I have clerks that I had 15, 20 years ago and they were looking to be judges at one point in time, but now with this kind of thing happening they don’t want to be judges any more. So you have very qualified people who don’t want to be judges because in seven years after their first appointment who knows what’s going to happen? That’s a bad thing for the judiciary. This is probably the best. I went to law school in Denver, Colorado. We read mostly New Jersey cases because the New Jersey Supreme Court, the New Jersey lower courts were the best in the United States. They still are. We can’t let that be injured by a political fight.