Partisan Gridlock Impacts State Supreme Court
December 18, 2013
Senator Kevin O’Toole
Headlines of a government shutdown, stalemate over the debt ceiling, a never ending budget crisis or nominees not receiving hearings, are all we see coming out of Washington. Partisan gridlock, bickering and a failure to do the work of the American people seems to be the norm there. Under the leadership of Governor Christie we have accomplished many great things – in a bipartisan manner.
But there remains one major hurdle that my Democratic colleagues across the aisle can not seem find the bipartisanship to accomplish – a full compliment of justices on the state Supreme Court.
The framers of our state’s constitution spell out in Article 6, Section 6 item 1 that “The Governor shall nominate and appoint…the Chief Justice and associate justices of the Supreme Court.” The constitution, in the same section, very clearly and expressly defines the role of the state Senate as that of “advice and consent.” Since our constitution was adopted in 1948, legal scholars cannot recall a time when we have gone 3 years without a full compliment of justices. Those same scholars cannot remember when the highest court in our State has relied so heavily upon “replacement justices” to adjudicate the law.
My Democratic colleagues say they are concerned with the “partisan” composition of the Supreme Court and that Governor Christie is trying to appoint justices who share his vision. The irony of that statement is that after this past November’s election, 61% of New Jerseyeans share that same “vision” as Governor Christie. My colleagues on the other side of the aisle fail to mention that since our constitution was adopted we have had six Democratic governors and each has had a Democratic majority on the Supreme Court. To put that into perspective, since 1948 the court has had a Democratic majority for 50 years compared to only 13 years of a Republican majority.
Only now, under Republican Governor Chris Christie, Democrat Senators bemoan having a third or fourth justice with a “Republican” designation. However, when for over 50 years, 4 out of the 7 justices had a “Democrat” designation it was of no consequence. This partisan hypocrisy is astounding.
Recently we have seen Governor Christie nominate imminently qualified and ethnically diverse candidates to the Supreme Court, only to have my Democratic colleagues rebuke the first Asian American nominee and first openly gay African American nominee in humiliating fashion, including the unprecedented leaking of confidential personal information. They let the nomination of current Associate Justice Anne Patterson languish for 392 days until she received a hearing. Nominees David Bauman and Robert Hanna have been waiting for over a year – still with no hearing date in sight.
The only nominee to receive a hearing was Justice Fernandez-Vina whose hearing was within 40 days of his nomination and he was confirmed within 70 days. Prior to Governor Christie’s election, the state Senate has traditionally heard nominees within 60 days of their nomination by the then governor. This practice occurred with a Democratic Governor and a Republican controlled Senate, and vice versa.
We recently passed the one year anniversary of the nominations of David Bauman and Robert Hanna to the state Supreme Court and on the heels of the US Senate passing a resolution to prohibit the filibuster of nominations to the federal courts, I have introduced a resolution (SR-132) to change the Senate rules calling for all nominees to the state Supreme Court to receive a hearing within 90 days of their nominations.
If our predecessors in the Senate could thoroughly interview and deem qualified nominees of the past within an average of 60 days, then surely we are capable of doing so in 90. There is no justifiable reason, beyond politics as usual, for our highest court to continue without a full compliment of judges when there are two nominees waiting for us in the Senate to do our jobs. The record speaks for itself; nominees can be thoroughly vetted within 90 days and given hearings.
Claims to the contrary are disingenuous at best and mired in political gamesmanship at worst. For my Democratic colleagues to continue denying New Jerseyeans a complete and constitutional Supreme Court is an abdication of their duties. The only way we can continue effectively serving the residents of New Jersey is by suppressing partisan demons and returning to the practice that has proven to be immensely successful – bipartisan cooperation.