Yesterday, Governor Christie announced that he was nominating Monmouth County Superior Court Judge David Bauman to fill the Supreme Court seat currently occupied by Judge Cuff. The announcement was a surprise, since it had been generally understood that the Governor had agreed with State Senate President Sweeney to leave Judge Cuff in place until she reaches the mandatory retirement age in August 2017. That was part of a larger deal in which Chief Justice Rabner, a Democrat, would be reappointed and the Senate would confirm Lee Solomon, a Republican who was Governor Christie’s choice for another open Supreme Court seat. The Chief Justice was reappointed, and Justice Solomon now sits on the Court. The current lineup on the Court is thus three Democrats (Chief Justice Rabner, Justice Albin, and Judge Cuff), three Republicans (Justices Patterson, Solomon, and Fernandez-Vina, also an appointee of Governor Christie), and one independent who has served in Republican administrations (Justice Lavecchia).
There is a sense of deja vu here, since Governor Christie nominated Judge Bauman to fill a Supreme Court seat in 2012. That was one of two Supreme Court nominations that the Governor made at that time. The other nominee was Robert Hanna. Neither nominee received a hearing, and Governor Christie eventually withdrew the Hanna nomination. Hanna was later confirmed for a Superior Court judgeship. The Bauman nomination died when the legislative session expired. Thereafter, Judge Bauman was granted tenure in his Superior Court position by a unanimous Senate vote.
It is not clear why the Governor made this nomination, or did so at this time. According to a press report, when asked why he was making this nomination now, Governor Christie replied “The spirit moved me.” Regardless of the real reason, if there was previously a deal to leave Judge Cuff in place, this or any nomination may face tough sledding in the Senate.
Indeed, Senator Sweeney has already announced that the Senate will not consider the nomination of Judge Bauman, a Republican. Senator Sweeney stated that the only nominee who would be considered would be a Democrat, since the Governor was trying to “pack the court” and “end the 70-year tradition of partisan balance and judicial independence.”
There is a tradition that the Court should have no more than four members of either major party. Some count Justice Lavecchia as a Republican since she held positions in Republican administrations, though she is not a registered Republican. That would mean that five Republicans would sit on the Court if Judge Bauman were confirmed, which is presumably what Senator Sweeney is objecting to. Governor Christie, however, characterizes the balance that would result if Judge Bauman were confirmed as four Republicans, two Democrats, and one independent.