The Star-Ledger

Protect The Independence Of New Jersey's Supreme Court: Opinion

The Star-Ledger — Monday, July 22, 2013

By Star-Ledger Guest Columnist
Phyllis Salowe-Kaye

The New Jersey Supreme Court has ruled that Gov. Chris Christie did not have the authority to abolish the Council on Affordable Housing. This is good news for low-income residents who need a place to live. But this decision isn't only about COAH.

This decision is a rebuke to the governor's efforts to exceed the limits of the executive branch authority in his attempts to eliminate or weaken laws and programs with which he disagrees. This decision is about the future of New Jersey's independent state agencies, such as the Election Law Enforcement Council and the Board of Public Utilities.

But more important, this decision shows the importance of a strong, independent, bipartisan Supreme Court.

Supreme Court justices appointed by Democratic and Republican governors joined with the majority in this ruling. This was not a ruling governed by politics; this was a ruling governed by law.

In this hyperpartisan era, it's more important than ever that New Jersey have an independent and diverse court that will, as in this case, interpret the law, take the long view and not bow to political pressures. The Supreme Court should not exist simply to rubber-stamp one set of political ideologies and policies.

Christie has attempted to make the court more partisan and more divided than it has been in modern history, by inappropriately influencing the work of the court. In 2010, Christie chose not to reappoint Justice John Wallace Jr., a Democrat. In New Jersey history, no governor ever refused to reappoint a sitting justice. This policy insulated justices from fear of political repercussions for their decisions. Past governors recognized that stability serves the public interest and keeps political interference at bay.

In a Wall Street Journal article last year, Christie said he would appoint new Supreme Court justices only if they shared his opposition to the Abbott school-funding decision. These sorts of political litmus tests are not compatible with a healthy democracy, which requires the court to be independent and separate, to be the check and balance on the other branches of state government that the state constitution requires.

Last spring, the governor's nominees to the Supreme Court were a Republican and an independent who had been a registered Republican in New York until a year before his nomination in New Jersey. If Christie's nominees had been approved by the Senate, the court would be unbalanced, represented by four Republicans, two Democrats and an independent. The historic and balanced approach that made the New Jersey Supreme Court one of the most respected in the country ended with Christie's nominations last year.

The Senate rightly refused to approve the governor's nominees. If these Christie appointments had been on the court, it's possible we would not have seen the governor's efforts to exceed his executive limits curbed. The court's independence has been preserved — for the time being. It is reassuring that other rights New Jerseyans enjoy cannot be overturned at the whim of one governor based purely on political ideology.

Unfortunately, it is not at all clear that Christie has given up on remaking the court. And New Jersey has already seen the distasteful effects of Christie's politicization, with speculation that Chief Justice Stuart Rabner awaits the same fate as Wallace, when his reappointment comes up next summer, should Christie win re-election.

Under the Christie governorship, every nontenured justice must worry whether his decisions could put him in disfavor with the governor and cost him his job. As Rabner said in a statement criticizing the decision not to reappoint Wallace: "Citizens who turn to the courts for relief are entitled to have their cases resolved by impartial judges who focus only on the evenhanded pursuit of justice; litigants should never have to worry that a judge may be more concerned about how a decision could affect his or her reappointment."

If Christie believes in the constitution and its mandate that even his elected position has limits, and that the court should remain a check on gubernatorial powers, he should appoint justices who will continue New Jersey's traditions of balance and independence.

Phyllis Salowe-Kaye is executive director of New Jersey Citizen Action.

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