Following this post about Justice Fernandez-Vina’s retirement earlier today, Chief Justice Rabner this afternoon issued the following statement, available here:
“Under the State Constitution and the rules of the Court, the Chief Justice has discretion to assign the Appellate Division judge who is senior in length of service to serve temporarily in the Supreme Court. See N.J. Const. art. VI, § 2, ¶ 1; R. 2:13-2(a).
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. In keeping with that valued tradition, I am not assigning an additional member of the Appellate Division to fill the vacancy created by Justice Fernandez-Vina’s mandatory retirement. The Court will continue to operate with six members.”
An apparent reason for this decision is that Judge Fisher, the most senior judge sitting in the Appellate Division, is a Democrat. Temporarily elevating him to fill Justice Fernandez-Vina’s seat would create the partisan imbalance that the Chief Justice desired to avoid, in keeping with tradition.
Maintaining that tradition outweighed the risk of an evenly divided Court in ruling on cases. Fortunately, 3-3 decisions have not happened often when, due to recusals, only six members of the Court sit. It is to be hoped that it does not happen during the current interval when the Court will have only six members. It is further to be hoped that that interval is not a long one.