New Jersey Supreme Court Chief Justice Stuart Rabner is declining to name a temporary replacement for a conservative justice who just retired because the next in line is a Democrat, which would give the party a 5-2 majority and break a tradition of ensuring the court’s political balance doesn’t tip too far in one direction.
“Since the adoption of the 1947 Constitution, Governors have abided by the tradition that no more than four members of the Supreme Court can be affiliated with a single political party,” Rabner said.
He holds one of the Democratic seats, and to show such dignified restraint is admirable. The chief justice took the high road, and we’re lucky to have him. Imagine if we disintegrated into the kind of politicization we see in Washington, where these decisions have become partisan bloodsport.
Gov. Phil Murphy has said he will nominate a Republican to replace Justice Faustino Fernandez-Vina, the conservative who just retired, in accordance with longstanding tradition. Ensuring rough ideological balance is key to the integrity of our high court’s rulings.
The tradition is three Democrats and three Republicans, with the chief justice belonging to the party of the appointing governor. Governors generally follow this policy, replacing retiring judges to retain that balance. When they appoint people from the opposite party, it’s an incentive not to go to the outer edges, but to choose someone moderate. This has favored folks who are thoughtful, reasonable, close to the center and willing to work toward consensus.
It has given us unanimous, bipartisan rulings on some controversial issues, like school funding, affordable housing and pandemic borrowing; or the high court’s decision to legalize same-sex marriage, despite Chris Christie’s efforts to appeal; or its 2017 ruling that police dashcam footage should be publicly disclosed.
That our court has been able to sustain such decisions over time speaks to the added credibility of its bipartisanship. You could imagine it not going so smoothly in Washington, a big reason why public trust in the U.S. Supreme Court is declining. Yes, there is some cost to what Rabner is doing, because for the time being, only six justices will sit on our Supreme Court – if it’s split 3-3, you end up with ruling of appellate division.
But it’s worth it, in order to uphold our bipartisan tradition.
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Rabner is giving us the best of New Jersey politics, a graceful moment in a time of entrenched partisanship. Sen. Holly Schepisi is giving us the worst.
Senatorial courtesy is an antiquated tradition that does nothing but mischief: It allows a single senator to block the appointment of anyone from his or her own county, denying the nominee both a hearing and a vote.
Now Schepisi, a Republican from Bergen County, is using this unwritten custom to block Rachel Wainer Apter, who was originally nominated a year ago by Murphy to replace a Democratic justice. Schepisi won’t even say what her objection is. She’s been throwing a wrench into the workings of the Supreme Court for months and is still sitting back and refusing to explain what that’s about.
It makes no sense that holding back a replacement for a Democrat would help the court’s ideological balance. That’s not under threat. Murphy has committed to maintaining ideological parity, like Rabner just did.
And in the meantime, Schepisi is the reason why this court is down one Republican. Wainer Apter would simply swap out one of the Democrats; then Murphy would find a Republican and the balance would be 4-3 – with an additional conservative than it has today.
So why won’t Schepisi move forward on this? “We are working through the process,” was all she would tell us last week. Contrast her shady backroom dealings with Rabner’s magnanimous bipartisan move, and ask yourself: Which is healthier for our democracy?
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