New Jersey faces a grave constitutional crisis. Few are talking about it. Governor Christie has launched a dangerous and myopic campaign against the principles of judicial independence and separation of powers. If he succeeds, New Jersey's judicial and political institutions will be fundamentally weakened.
Why should we care about judicial independence? The concept may seem removed from our daily lives. But without judicial independence, our Republic would wither. Alexander Hamilton, writing in Federalist N. 78, eloquently made this point by positing, "the independence of the judges may be an essential safeguard against the effects of occasional humors in the society." Undue pressure from the executive branch, legislative branch, or majority of private citizens on a judge eliminates this "essential safeguard" in a democratic society. When interpreting the law, judges should rely on procedural rules, principles of impartiality and personal judicial philosophies. They should not worry about angering powerful politicians, garnering political retribution, and gaining reappointment.
Not all judges have to gain reappointment. New Jersey Justices, however, do. Under the current New Jersey Constitution, Supreme Court Justices and certain judges serve for an initial term of seven years. After the initial term, the Governor can then submit a nomination for that justice or judge to the Senate. If the Senate votes for reappointment, they gain tenure (until the age of 70, the mandatory retirement age). Only justices and judges deemed unfit were denied reappointment (as specified in Article VI, Section VI, Paragraph 3).
Enter Governor Christie. The Governor has argued that the "outrageous" Supreme Court "has gotten out of control". He has promised to "remake the court," and has observed, "the only way to change the court is to change its members". In 2010, in this quest to "remake the court," he declined to renominate Justice Wallace, an exemplary, moderate Justice.
This decision to boot Justice Wallace for the bench was a radical action, an unparalleled power grab even from a Governor known for his audacity. No New Jersey Governor, since 1947, had failed to reappoint a Justice, even when the Justice in question came from a different political party. This commitment to judicial independence was not a partisan issue. Republican Governors reappointed Justices who were nominated by Democratic Governors, and vice versa. Bowing to the extremists on the fringe of the political spectrum, Governor Christie shamefully rejected this common-sense precedent.
Yet Governor Christie may exacerbate these problems of his own making in the next two months. The initial seven-year term of Chief Justice Rabner concludes in June. By any metric, Rabner has been an outstanding Chief Justice. Ethical, meticulous, and thoughtful, he has garnered bipartisan plaudits. A Governor who followed the intent of the New Jersey Constitution and recognized the importance of a bipartisan judiciary would undoubtedly reappoint him.
Unfortunately, that type of Governor can only be found in history textbooks. There is widespread speculation -- and anxiety -- that Governor Christie may fail to reappoint Rabner, just as Christie failed to reappoint Justice Wallace. In public, Christie has condemned many of Rabner's decisions, notably on educational funding and same-sex marriage. Social conservatives remain apoplectic with Chief Justice Rabner's opinion that paved the way for marriage equality in New Jersey. This faction will inevitably play a role in the 2016 Republican Presidential primary, in which Governor Christie is an all-but-declared participant.
Letting Chief Justice Rabner go would be a terrible loss for New Jersey, given Rabner's distinguished record of service. Yet the loss would be particularly devastating for its symbolism. It would send an unambiguous message to all untenured judges in New Jersey: get in line with the Christie Administration, or watch out. Ultimately, if the Chief Justice is not safe from Christie's crusade, who is?
Governor Christie has argued "the Supreme Court in this state has seen itself as a superior branch of government, not a coequal branch of government". Somebody should remind him that the executive branch is not a superior branch, as well. Chief Justice Rabner should be reappointed swiftly. Bridgegate should not become Judgegate.