Politics & Policy

Christie’s Lawyer Problem

Chris Christie (Jeff Zelevansky / Getty Images)
Conservatives say he hasn’t fought hard enough against liberal judges.

Chris Christie rose to national prominence in 2010 in part on his reputation for taking on unpopular battles, entrenched interests, and vocal critics at town-hall meetings across his heavily Democratic state.

But the governor’s decision last Wednesday to renominate for tenure the state’s chief justice, Stuart Rabner, a Democrat, has led several conservatives to denounce him for backing down from a fight over judicial nominations and giving up on a campaign promise to reshape the state’s top court. Together with his deference to the New Jersey State Bar Association and his failure to push for tort reform in a notoriously litigious state, the controversy over the renomination opens up a gaping vulnerability in a potential 2016 nomination battle. The governor would face a field of candidates from more conservative states who have been able to tackle these issues with greater ease, and who have done so with great success.

#ad#The reappointment of Rabner, who cleared the way for the legalization of same-sex marriage in New Jersey, was to some conservatives a sign of flagrant disregard. The conservative activist L. Brent Bozell III, chairman of the political-action committee ForAmerica, accused Christie of “flip[ing] his middle finger at conservatives” and said the governor is assuming, erroneously, that conservatives will be willing to overlook the issue if he mounts a presidential bid in 2016. “He is divorced from reality,” Bozell said in a statement.

Christie also drew the ire of Daryn Iwicki, the director of Americans for Prosperity’s New Jersey branch, who called his move “disastrous news for taxpayers” and predicted it would have “untold consequences on the state for years to come.”

The Rabner reappointment was part of a compromise Christie reached with state-senate Democrats that put an end to a simmering war over judicial nominations. It allowed Christie to nominate a Republican judge, Lee Solomon, to a seven-year term on the court in exchange for Rabner’s renomination. Rabner, a friend of Christie who served as his deputy in the U.S. attorney’s office, has been chief justice since 2007. With tenure, he will remain on the bench until 2030.

On the campaign trail in 2007, Christie said none of the state’s supreme-court justices, including Rabner, had the traits he would look for in selecting a justice. “On the New Jersey Supreme Court right now? No,” he said in response to a question about whether any of the justices fit his criteria. “I want someone who is extraordinarily bright, and I want someone who will interpret laws and the Constitution, not legislate from the bench.”

Bill Palatucci, a senior adviser to Christie, cautions against a rush to judgment. He points out that Rabner, who was appointed to the bench by Democratic governor Jon Corzine, has had to recuse himself from a number of cases over the past seven years, and Palatucci says some conservatives are jumping to conclusions. “People should hold their views on the chief justice until we get a longer track record and until we see where he comes down on many issues,” he says.

The New Jersey Supreme Court, which since the late 1960s has amassed increasing powers, has long been the object of conservative ire. Conservative legal scholars say that the court, which is deeply involved in the state’s education and housing decisions, is the root of New Jersey’s fiscal problems. Steven Malanga of the free-market Manhattan Institute called it “the court that broke New Jersey”; others, like the conservative Federalist Society, have emphasized that remaking the court is a prerequisite for addressing the state’s nagging budgetary problems — including, right now, the $2.7 billion budget shortfall that is causing the governor major political headaches. They had high hopes that Christie would do so.

New Jersey has an idiosyncratic system for supreme-court appointments under which justices are appointed by the governor for an initial seven-year term and may then be reappointed for tenure. Governors have for decades operated under a gentlemen’s agreement to maintain a political balance on the seven-member court, ensuring that there are no more than four members of one political party.

Christie threatened to upend that tradition in May 2010 when he refused, for the first time since the state constitution was adopted in 1947, to reappoint a sitting justice, Democrat John Wallace. Conservatives thought they saw the governor bracing himself for a fight against a notoriously activist court, but as Senate Democrats retaliated by blocking his judicial appointees, he searched for a compromise. Christie emphasized in a news conference on Wednesday that he was bowing to the practical necessities of divided government. “The fact is that when you compromise you don’t get everything you want,” he said. “This should not be the subject of a newsflash.”

Palatucci says the decision was the best of the available options. “The other option was to do nothing and leave the Senate Democrats to do what they might want to do or continue to have temporary justices appointed from the appellate court,” he says. He praises the nomination of Republican Lee Solomon, calling him a “great pick,” and emphasizes that on some matters, like crime, Rabner, a former prosecutor, is “really conservative.”

The national GOP’s right flank is already looking to make Rabner’s reappointment the weight that sinks Christie in the upcoming presidential primary. They say that a chief executive does nothing more important than appoint judges and that Christie, one of the strongest chief executives in the country, simply refused to expend political capital on judicial appointments. Although groups like the Judicial Crisis Network and Americans for Prosperity were spoiling for a fight in New Jersey and eager to storm the state to help shape public opinion, it was a fight the governor didn’t want to have.

“Christie is trying to present himself as the great compromiser going into the presidential season,” says Carrie Severino, chief counsel of the Judicial Crisis Network. “What he is actually doing is showing Republicans that the priority he places on the judiciary is very low.” Severino, Bozell, and others are sounding the alarm: As president, they say, Christie will nominate judges more in the mold of Supreme Court justices David Souter and John Paul Stevens — who deeply disappointed conservatives – than that of Antonin Scalia and Clarence Thomas.

“What he’s telling us is if he’s president then we can expect a Christie Court to look no different from an Obama Court,” Bozell said in the statement.

The governor brushed off the criticism, telling reporters that his critics are simply eager to get their names in the newspaper. “You know what is common with all of the critics and the ones who praise me on this one is they never have to make any decisions themselves,” Christie said at his Wednesday news conference. “All they are is on your speed dial to get a comment when you need a comment to fill whatever many lines you have in your particular story. That’s who they are. That’s what their life is all about.”

Palatucci emphasizes that while Christie hasn’t reached a decision about a 2016 presidential bid, he believes Republicans are “yearning for somebody who can stand up and take charge.”

This is not the first time Christie’s judicial appointments have prompted pushback from conservatives. He acceded to the demands of senate Democrats in 2012 when they insisted that he appoint two minority candidates to the court. One was an Asian American; the other, Bruce Harris, was an African American who was on record equating opposition to gay marriage to slavery. Both were ultimately rejected by the Democratic legislature. Even before that, however, the nominations elicited an outcry from conservatives. “Erase your strategy for staffing the Supreme Court,” the Newark Star-Ledger’s conservative columnist, Paul Mulshine, wrote to Christie in the wake of the nominations.

Further, Christie has continued to allow the New Jersey State Bar Association, the state’s primary lobbying group for lawyers, to screen his judicial nominees and has yet to propose legislation to reduce tort litigation in New Jersey despite a pledge he made on the campaign trail in 2009 to push for such reforms.

Christie’s agreement with the New Jersey State Bar Association was modeled after the role the American Bar Association played in vetting judicial nominees on the federal level until George W. Bush ended the practice due in part to the complaints of conservatives, who said the bar association had a liberal bias. Until Bush intervened, the ABA had for nearly half a century evaluated the qualifications of judicial nominees and passed its ratings on to the president. The Christie camp says it acceded only because Democrats in the state legislature demanded it as a step in the process, though it is not something the governor takes into account when he nominates judges.

#In one high-profile case, Christie in March 2011 withdrew the nomination of Republican assemblyman Michael Patrick Carroll, one of the state’s most conservative lawmakers, a tort-reform advocate, and a member of the Federalist Society, to be a superior-court judge when the Bar Association said the governor had not given the group enough time to vet him.

The bar association, which has nearly 20,000 members, is a trade group formed to advance the interests of its members, and it has a reputation for being politically liberal. In an interview last year with the Star-Ledger, Carroll charged that “a Democratic governor wouldn’t send a commerce nominee over to the chamber of commerce for approval” and said he didn’t think Christie should allow the bar association to vet his nominees.

Others are disappointed that Christie has yet to propose any legislation to reduce tort litigation or jury awards in New Jersey despite campaigning on the issue in 2009. The state is a hotbed of litigation that business leaders and legal conservatives say has made it hostile to business and contributed to its economic struggles. Though Christie has a reputation for steamrolling opponents, he has said publicly that tort reform is going nowhere so long as Democrats run the show in Trenton. “I don’t like to give out false hope,” he said at a town-hall meeting in June 2012. “I don’t think you’ll ever see any significant kind of tort reform” so long as Democrats are in charge.

The chairman of the senate judiciary committee, Nick Scutari, is a personal-injury lawyer who opposes tort reform and is seen as the major obstacle to a legislative push. “The governor would love to see tort reform,” says Christie spokesman Kevin Roberts. “The landscape in New Jersey is such that we feel it would be hugely beneficial to our economy.” Nonetheless, Roberts says the issue is “dead on arrival” in the legislature and that the governor sees little logic in expending political capital on it when proposed legislation has little chance of becoming law.

As Christie positions himself to run in 2016, his Republican critics say that, at the very least, he has allowed a hostile business climate to persist in the state. “There is some disappointment in the business community that he hasn’t led more aggressively on this issue,” says Marcus Rayner, the executive director of the New Jersey Lawsuit Reform Alliance. That could complicate a presidential bid given that, to date, some of the governor’s staunchest support has come from the business community. Rayner argues that the litigious environment in New Jersey has hurt the pharmaceutical industry, a major sector of the state’s economy. One startling statistic: In the 1990s, one in five pharmaceutical jobs were in New Jersey. Today, that number is down to one in seven.

In a Republican primary, Christie will likely square off against governors with strong records of achievement on tort reform. Texas governor Rick Perry signed several reform initiatives into law between 2003 and 2005. Wisconsin governor Scott Walker, another likely presidential contender, signed bills into law in 2011 that cracked down on personal-injury lawsuits, capping payments for pain and suffering and limiting punitive damages to $200,000.

Of Christie, Rayner says, “We would hope that he would turn to this in his second term.”

— Eliana Johnson is a political reporter for National Review Online.

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