The Corner

Constitutional Crisis in the Garden State

Chris Christie is looking to shake up the liberal activist judiciary in New Jersey, but he’s having trouble making it happen, as chaos breaks out not just around but in the state supreme court there.

Christie refused to reappoint Jersey supreme court justice John E. Wallace. It is totally within his rights as governor not to reappoint a justice, but it has never previously happened in New Jersey history.

In response, the chief justice, Stuart Rabner, a Democrat, not only blasted Christie’s move to nominate a new justice for the court — he appointed a justice of his own as an interim one …. not clearly within his constitutional rights.

So yesterday, another justice on the court, Roberto A. Rivera-Soto, appointed by former Democratic governor Jim McGreevey, issued an opinion calling the chief justice’s move unconstitutional and announcing that he refuses to vote until the interim justice, an appellate judge, is gone.

One another justice has said that she has “grave reservations,” according to the New York Times, about the interim judge’s presence on the court, but wouldn’t go as far as Rivera-Soto. 

Rivera-Soto’s read of the unconstitutionality of the interim-judge situation is consistent with a Federal Society report on the situation. Earl M. Maltz, a professor at Rutgers, writes: 

 When a sitting justice is temporarily unavailable for any reason, the New Jersey constitution does not vest either the governor or the state legislature with the power to replace him.  Thus, if one takes the view that the assignment of a replacement is “necessary,” the chief justice would be the only person with the authority to make the necessary appointment.  but when a justice leaves the court permanently, the constitution clearly vests the power to name a replacement not with the chief justice, but rather with the Governor and the state senate.

Of course, a political deadlock between the Governor and the state senate might in theory leave the court short-handed for an extended period of time.  but even if this concern is considered to be of constitutional magnitude, the power to deal with the problem is not vested in the chief justice.  Instead, the state constitution provides the Governor with the authority to deal with the problem.

With the news of Rivera-Soto’s position, you’d think the senate there would see the urgency in appointing the governor’s nominee to the court, Anne Patterson, already.


Instead, the senate turns on the one guy on the court who seems to care about the constitution more than Democratic-vs-Christie politics.

The New Jersey Senate president called on Rivera-Soto to resign Friday.  So Chief Justice Rabner can stack the court with interim judges indefinitely?

How irresponsible. The obvious solution to this is to confirm Patterson and stop the uncertainty and now downright chaos.

This is miles beyond activism. It’s utter disregard for the state’s constitution, from exactly the people who supposedly serve to protect it. 

Gary Marx, executive director of the Judicial Crisis Network, praises Justice Rivera-Soto, a profile in leadership, in a statement: 

In abstaining from decisions by the New Jersey Supreme Court, Justice Rivero Soto is standing up in defense of the New Jersey Constitution and fulfilling his obligation to the oath of office he took when he raised his right hand.  Senate President Sweeney has created a constitutional crisis by playing partisan politics with the court.  Justice Rivera Soto has stood up to defend the NJ constitution and exposed the threat Senator Sweeney and his Trenton-politics-as-usual poses to justice in the Garden State.

Senator Sweeney is playing usual Trenton games. This time it is judicial roulette except the gun is pointed at the constitution. He may or may not be able to kill the constitution, but his game certainly threatens it. Senator Sweeney has brought the high court’s entire work into question. Who knows what damage this could cause. Stop the madness. Confirm Patterson.


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