Professor Williams Speaks on “The New Jersey Supreme Court’s Independence Under Fire”

Professor Robert Williams, Distinguished Professor of Law at Rutgers-Camden School of Law, was the speaker at the 22nd annual Alice Sofis Evangelides Lecture at the Eagleton Institute of Rutgers University, which took place tonight.  His remarks centered on the decision of Governor Christie not to reappoint Justice John Wallace after the end of his seven-year term, and the effect of that non-reappointment on the independence of the Justices from the political process.

Professor Williams harked back to the Constitutional Convention of 1947, which replaced the prior 1844 Constitution.  Prior to 1947, New Jersey’s judiciary had the reputation of being the worst in the nation, while its Governor was a very weak position.  The 1947 Constitution was designed to, and did, create a very strong Chief Justice and an extremely powerful Governor.  The Chief Justice was given the power (among other things) to assign personnel within the Superior Court, including the ability to promote judges to the Appellate Division.  The Governor was made the only official elected statewide and was given such broad powers that New Jersey’s Governor has since 1947 been labeled the nation’s most powerful chief executive.  Professor Williams characterized the design of the 1947 Constitution, which was overwhelmingly ratified by the people in 1948, as evidencing a belief in strong central government authority, a position that he noted is not very popular today in many quarters.

The 1947 Constitution provided that Supreme Court justices and Superior Court judges would be appointed by the Governor, with the advice and consent of the State Senate, to an initial “probationary” term of seven years.  After that term ended, the Governor could renominate that judicial officer for life tenure until mandatory retirement at age 70.  At the Constitutional Convention, concern was expressed, including by the famous Judge Learned Hand, that this arrangement would allow Governors to deny reappointment based on purely political considerations.  The Convention, however, understood that reappointment would ordinarily follow as a matter of course, absent any ethical or corruption concerns, according to Professor Williams.

Professor Williams distinguished between “fresh” judicial appointments (that is, those that would fill a seat left empty due to death or retirement, for example) and reappointments.  In the case of a “fresh” appointment, he expressed the view that a Governor, having been elected by the public, should be free to appoint anyone who is qualified, even if the object of the appointment is to fill a seat with a person who shares the Governor’s political views.  In contrast, a reappointment should not partake of political considerations, but should be granted unless ethical or corruption concerns are present.

This “tradition,” which Professor Williams acknowledged could not be enforced in court, had prevailed for more than 60 years until Governor Christie declined to reappoint Justice Wallace.  The distinction between “fresh” appointments and reappointments is buttressed, in Professor Williams’s view, by the action of the State Senate in the 1990’s to strip senators of the right to exercise senatorial courtesy to block reappointments, while leaving that courtesy intact as to “fresh” appointments.

Chief Justice Rabner and Justice Hoens both will reach the end of their initial seven-year terms during Governor Christie’s term, and they may be looking over their shoulders as they decide cases for fear of offending the Governor, Professor Williams believes.  A retired Superior Court judge in the audience affirmed that the possibility of retribution, in the form of a denial of reappointment by the Governor, is never absent from the minds of any New Jersey judge.

Professor Williams had much more to say, recounting the entire saga that followed the non-reappointment of Justice Wallace.  The latest episode in that ongoing story is discussed here, with links to prior posts about the history of this unfortunate series of events.  Professor Williams concluded with some thoughts about what the future might bring under various potential scenarios, but admitted that he did not know how it would all come out.

Many distinguished persons attend this Evangelides Lecture.  The most distinguished, however, was retired Chief Justice Deborah Poritz.  Chief Justice Poritz provided the audience with a summary of the mechanics surrounding the tradition that the Supreme Court’s membership cannot tilt more than 4-3 in the direction of either political party.  She offered various other insights as well, a delightful bonus on top of Professor Williams’s ably delivered presentation.