TRENTON – The veteran state lawmaker said to be at the center of Gov. Chris Christie’s decision not to renominate a Supreme Court justice says he prefers another interim judge to serve on the bench over any Christie appointee.
Sen. Ray Lesniak, (D-20), who sits on the Senate Judiciary Committee that ultimately will decide whether Christie’s nominee makes it to the court, told PolitickerNJ he’s more comfortable with New Jersey’s high court getting another temporary justice over anyone tapped by Christie – including the governor’s latest nomination, Judge Faustino Fernandez-Vina.
Lesniak is at the heart of the decision for outgoing Justice Helen Hoens to be shown the door by Christie, who said the senator’s “very bold and arrogant announcement” that Hoens wouldn’t clear the Senate Judiciary committee was the reason he nominated a new judge. Now, Lesniak says he's more prone to support permitting the Supreme Court’s chief justice to look to the Appellate Division’s most senior judge over a Christie nominee.
“I’m much more comfortable with someone who has been an Appellate Division judge appointed by one of Christie’s predecessors than someone chosen by Christie who has made it clear that he expects the Supreme Court to abide by his dictates rather than by the law and Constitution,” said Lesniak.
“It’s more likely to be someone I prefer,” he said, adding, “even if it’s a Republican, it’s a Republican who’s been appointed by [one of Christie’s predecessors] and it’s a Republican who is likely to be more middle of the road than a Republican who Christie would choose.”
But the position wouldn’t go to a Republican.
According to the state Constitution, the high court’s chief justice can assign the Superior Court’s most “senior in service” judge in the event of a vacancy. And should Democrats hold up the nomination of Fernandez-Vina, it gives the party a majority in the Supreme Court – something that’s otherwise unlikely to happen in the Christie era.
Judge Anthony J. Parrillo, the most senior judge of the Appellate Division of the state Superior Court, would be next in line to serve on the high court in the event Chief Justice Stuart Rabner is afforded, and chooses, the opportunity to appoint another interim justice.
Parrillo, a Democrat, would take the place of Hoens, a Republican. The scenario would give Democrats a 4 – 2 majority on the court.
However, Senate President Steve Sweeney, (D-3), said this week he’s committed to giving Fernandez-Vina a hearing and conventional wisdom would support granting Christie’s newest nominee an opportunity to serve on the high court.
Democrats feel it’s a win-win because Fernandez-Vina’s appointment would not change the current makeup of the court and they can blunt the governor’s criticism of being obstructionists by approving a Christie appointee.
Not to mention, some suggest stacking the Supreme Court with too many interim justices could present its own set of problems later down the road.
Rutgers Camden Law Professor Robert Williams says while it’s too early to tell, it’s at least in the realm of possibility an attorney in the future could argue any precedents or decisions handed down by a Supreme Court with a high number of interim justices could somehow erode the legitimacy of the ruling.
“Technically, it should not because the interim or the temporary serving judges are constitutionally valid,” Williams said. “On the other hand, and particularly in close cases, … if one of the temporary serving judges casts the deciding vote, you can imagine that out in the future the argument being made is that certainly the quality of that precedent is somehow reduced or that the decision wouldn’t have the sort of binding or persuasive quality that it [may otherwise] have.”
But Williams says the theory is untested and it’s hard to know for sure what future lawyers and judges will re-examine.
Nonetheless, conventional wisdom has it that Democrats in the Legislature will push Fernandez-Vina through while holding the nominations of Robert Hanna and Judge David Bauman, whose nominations have been sitting since late last year.
“He will get a hearing,” said Sweeney on Monday, referring to Fernandez-Vina.
“I just have to work it out with the judiciary chair,” he said, adding he didn’t know if the hearing would come before or after the November election.
Hoens’ term expires in October.
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