Saving Judicial Independence

Last month, the governor announced that he would not reappoint Justice Helen Hoens but would instead nominate Judge Faustino Fernandez-Vina, the Camden County assignment judge, to fill her seat. Shortly thereafter, Senate President Stephen Sweeney announced that the Senate would hold hearings on the nominee. It has taken time to digest the magnitude of this event. Far more than the governor’s 2010 refusal to reappoint Justice John Wallace Jr., this bipartisan action has the potential, if it continues, to end the New Jersey Supreme Court as we know it, as we believe it was intended, and as it has operated for more than 60 years. This is perhaps the most important issue for our judiciary and our bar since adoption of the 1947 constitution.
Unlike Justice Wallace, Justice Hoens was removed from the court without even the pretense of ideological disagreement. The governor’s stated reason was only to spare her from a contentious reappointment hearing. Unlike the removal of Justice Wallace, the Senate president responded with prompt cooperation toward the confirmation of Justice Hoens’ replacement. Neither Sen. Sweeney nor his patron are given to idle gestures. Absent some disastrous failure of the vetting process, we regard Judge Fernandez-Vina’s confirmation as quite likely. If the terms of the deal are right, it appears that the governor and Senate are perfectly willing to replace a well-qualified sitting justice for no reason other than political expediency.
We must fight against the demise of the independent judiciary as a co-equal branch of our government. The seven-year clause of the 1947 constitution was a compromise, in which Arthur Vanderbilt, Gov. Alfred Driscoll and the other advocates of a strong judiciary had to accept less than federal-style tenure during good behavior. The record is clear that their intention was to produce tenure similar to federal court judges, with removal after seven years only in the case of demonstrated misconduct. Our framers understood, and it has proved true, that an independent judiciary enforcing a written constitution is an essential check on an overreaching executive and on the worst impulses of popular majorities.
Governors of both parties honored that understanding. Gov. Chris Christie ended the bipartisan consensus. The Senate is about to acquiesce. The removal and replacement of Justice Hoens sets a precedent in which it would be normal for justices to serve a single seven-year term before replacement. That would comply with the literal language of the constitution but not its spirit, and it will mean a judiciary far less independent, less prestigious, and much closer to the electoral cycle than we have enjoyed.
It is worth remembering what is being cast away. The New Jersey Supreme Court was one of the most well-respected state courts in the country, if not the best. In areas from product liability and tenants’ rights, through surrogate parenting and end-of-life issues, to the protection of privacy in the electronic age, its decisions set precedent throughout the nation. It has always been willing to bring the law into harmony with modern conditions, and it was never afraid to protect the rights of the individual.
But the damage goes beyond the weakening of our forthright and creative court of last resort. The seven-year clause applies equally to the trial and appellate judges of the Superior Court. Weakening judicial tenure exposes those judges to pressure from well-connected litigants, from lobbyists, from legislators, and from any governor who is willing to apply it. The everyday administration of justice becomes more questionable when judges have to start looking over their shoulders.
We are well aware that the court has accumulated vehement critics among those who consider its Abbott and Mount Laurel decisions to be inimical to the suburban middle class. This editorial board has endorsed many of those decisions, but that should be beside the point. It is within a governor’s legitimate power to change the interpretation of the law by using the appointing process, as it is within the Senate’s legitimate power to consider a nominee’s views of the law before consenting. The mandatory retirements of Justices Wallace and Virginia Long for age, and Justice Roberto Rivera-Soto’s decision to leave the bench, would have given Gov. Christie ample scope to reshape the court’s majority while still adhering to the tradition of tenure during good behavior. He chose instead to make a point of his power to purge the court through the seven-year clause, and it looks as if he will be given his way, in an apparent deal with the Democrats that puts all of us on the losing side.
The carnage of our judicial system must stop. Our desire to lay blame and there is plenty of blame to go around must take a back seat to concrete steps to preserve and restore a court and court system that we hold dear. Step one, not just Judge Fernandez-Vina, but all of the governor’s three pending nominees to the court, must be given prompt and fair hearings. Step two, Chief Justice Stuart Rabner must be renominated when his time comes. That must be an uncompromising issue for the bar. Step three, the State Bar Association must put aside its normal business of meetings and CLEs and make the defense of our judiciary a cause like it has never had a cause before.
As Justice Barry Albin reminded us a few months ago when he spoke eloquently and forcefully at our state bar convention, it is up to the bar to preserve and sustain a strong and independent judiciary that can impartially dispense justice without fear of retribution. It is time for the bar to mobilize, and to take that message to the streets, to the media, to the schools and to the public. As lawyers, we understand the importance of a judiciary that is free to decide cases on the basis of the law and conscience regardless of the outcome. It is our sacred obligation as officers of the court to educate and inform the public of what is at stake. Judicial independence and honest Senate advice and consent are worth fighting for, and all lawyers in the state owe it to our clients, the public and ourselves to engage. We as a board pledge to continue to do that. We implore the organized bar and our colleagues to do the same. This is not a Republican or Democratic issue; a big firm or solo issue; a plaintiff or defendant issue. It is an issue of what is right and an issue we will not cede on without a fight.
This editorial was published in the Sept. 16, 2013, issue of the New Jersey Law Journal and is republished here with permission. C. 2013 ALM Media Properties, LLC. All rights reserved.