Governor Chris Christie said yesterday that he was close to deciding whether to retain or replace Associate Justice John Wallace of the New Jersey Supreme Court, two days after a former primary rival used Rush Limbaugh’s radio program to ask New Jersey residents to call the governor and urge Wallace’ replacement.
Christie took time yesterday to answer critics who suggest that if he dares replace Wallace now, rather than granting him tenure and letting him serve until the mandatory retirement age of 70 (which in Wallace’ case would come in 22 months), he would be signaling an intention to “politicize the judiciary,” to borrow a phrase from The Star-Ledger (Newark).
Whatever decision I make will be based on a whole number of factors, and politics will only be a part of it.
Christie then reminded reporters that:
There is politics in everything we do. I’m taking this very seriously. I’m being very deliberative about the decision… It will have to do with my view of the appropriate role of the courts in the state of New Jersey, and how the best way is for that to be pursued over the next decade or two.
Steve Lonegan told Rush Limbaugh in the third hour of the Wednesday program that John Wallace, 68, was a judge of liberal leanings, and his replacement would allow Christie to stop a trend of liberal-activist decisions. Lonegan specifically mentioned the Abbott Decisions and said that Wallace was “heavily involved” in them. Lonegan is correct: Wallace has voted in favor of the various Abbott decisions, orders, plantiff motions, etc., since he joined the Court in 2003, as an examination of the PDF files on the Education Law Center’s list of Abbott links clearly shows. The Abbott Decisions (Abbot v. Burke I-XX) are a series of twenty lawsuits, motions, etc. that in essence have established the current system of State aid to 31 school districts that are “disadvantaged” because they lack a property tax base, which aid the State raises through the income tax.
The New Jersey Bar Association, according to The Star-Ledger, recommends retaining Wallace, this although Wallace would not be allowed to serve on the Court much longer anyway. Earlier last month, The Star-Ledger itself said that Wallace had “established a reputation as a rational, intelligent, practical justice who doesn’t make waves or headlines.” That might be true–except that whether the Abbott Decisions are the product of “rational, intelligent, [and] practical” consideration is in sharp dispute, especially by members of the Tea Party Movement, Christie’s old primary opponents Lonegan and Rick Merkt, and Star-Ledger columnist Paul Mulshine. Mulshine has at least twice urged Wallace’ immediate replacement and indicated that Christie is no conservative if he misses this opportunity to start reshaping the Supreme Court at once–a thing he promised to do in his campaign.
Wallace does have his allies, chiefly Senator Stephen Sweeney (D-3-Gloucester), the President of the Senate. Sweeney points out, for what this is worth, that no Justice of the New Jersey Supreme Court has ever failed of tenure, which is granted after a judge or Justice has served one seven-year term and then wins reappointment. Unlike the US Constitution, which grants automatic tenure to federal judges from the day of their confirmation, the New Jersey Constitution retains the concept of a preliminary term (and also sets the 70-year mandatory retirement age), and judges at a lower level have failed of tenure.
Yet purely on the strength of a lack of precedent for not reappointing a Supreme Court Justice, Sweeney says that replacing Wallace now could only have a political motive. Mulshine, Lonegan, and Merkt would probably disagree–and in fact a confrontation with the Court is probably inevitable. Indeed the Education Law Center has already threatened to sue the State all over again, charging that Christie’s budget violates the Abbott spirit. Christie might also be provoking a legal action under the Mount Laurel Decisions that forced the establishment of the Council on Affordable Housing. Thus if Christie thought to wait until Wallace could no longer serve in any case, he might not have that luxury.
This article is part of the New Jersey Supreme Court series.
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