Is Rabner headed the way of John Wallace?
By Darryl R. Isherwood | July 11th, 2013 - 1:56pm
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Is Rabner headed the way of John Wallace?

The political and legal worlds are buzzing today over yesterday's harshly worded statement from Gov. Chris Christie ripping the Supreme Court as liberal and the chief justice as "activist."

Christie lashed out at Chief Justice Stuart Rabner after the court ruled against the governor in his attempt to abolish COAH, the Council on Affordable Housing.

“Both elected branches of government approved the plan to eliminate COAH," Christie said. "Not surprisingly, this liberal Supreme Court once again ignores that and continues to blindly perpetuate its failed social experiment in housing. The Chief Justice's activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers. This only steels my determination to continue to fight to bring common sense back to New Jersey's judiciary.”

The retort from the governor has some wondering if Rabner will be the second justice to feel Christie's wrath come reappointment time.  Just months into his first term in office, Christie chose not to reappoint Justice John Wallace, the court's only black member.  Throughout his campaign for governor, Christie had decried what he called the court's activism, and promised to remake it in a more conservative image not prone to legislate from the bench.

Rabner is up for reappointment next summer and could be a target should Christie win his bid for reelection.

But should he decide to bench the chief justice, sending him no doubt into the high-salaried world of private practice, opponents of the governor will no doubt revisit Christie's defense of Rabner when Democrats sought to play politics after his nomination by Gov. Jon Corzine in 2007.

At the time, state Sen. Nia Gill sought to use senatorial courtesy to block Rabner's appointment.  Then-U.S. Attorney Christie, who was Rabner's boss when the chief justice was an assistant U.S. Attorney, blasted Gill and the Democrats, calling them petty for holding up Rabner's appointment.

"It's absolutely appalling and I am angry and you should be angry too," Christie said of Gill's use of senatorial courtesy. "You should have had it up to your ears with the petty politics of Trenton, with the failure of the people that we elect to represent us . . . It's petty and small and all that's wrong with politics in this state."

Christie then set his sights on Corzine.

"People need to stand up. Leadership is about telling the truth, first and foremost, not about making a political calculation about when you stand up for someone," Christie told the 200 Club of Mercer County.

But Rabner and Christie clashed over the move on Wallace, with Rabner saying it threatened the independence of the court.

"I am disappointed," Rabner wrote at the time. "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."

Whether Christie takes an ax to Rabner's tenure remains to be seen, but court watchers say the move on Wallace was unprecedented, making anything possible.

"The governor is the governor," said Rutgers Newark Law Professor Frank Askin. "At one point I thought Rabner was a friend of (Christie's) so who knows, maybe it's a momentary fit of anger, but the governor is not above punishing his foes and if he considers Rabner a foe he'll punish him."

Askin called Rabner's decision "courageous" in light of his non-tenured position and pointed out that the other two non-tenured Justices, Anne Paterson and Helen Hoens, dissented in the opinion.

Rutgers Camden Law Professor Bob Williams added that while Rabner's future could be in doubt, the issue created by Wallace's ouster goes beyond any one judge.

"You can't un-ring that bell," he said. "These are clear messages to judges, not just on the Supreme Court. This is just the next step in the attempt to intimidate the court into doing what the governor wants them to do.  In a sense, this is exactly what the governor said he'd do when he ran."

A spokesman for Christie did not respond when asked about Rabner's future.

"The Governor’s statement speaks for itself in reaction to the Supreme Court’s majority decision as written by the Chief Justice," said spokesman Michael Drewniak.

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