Constitutional Crisis?

Governor Chris Christie's decision not to reappoint Justice John Wallace to the State Supreme Court has prompted Senate Democrats to say they will not give Christie's nominee, Anne Murray Patterson a confirmation hearing or vote of advice and consent.

Christie's spokesman Mike Drewniak issued a statement calling on the Senate to fulfill their constitutional duty:

“The Governor has fulfilled his constitutional duties by making a judicial nomination; the Senate’s constitutional duty is to provide ‘advise and consent’ through a hearing for the nominee, followed by an up-or-down vote in the full Senate. That’s all we ask. So, we would be surprised if the Senate President is willing to simply abandon the New Jersey Constitution and refuse to consider a qualified judicial nominee. That would truly be a historic and unfortunate precedent.

“Also, the Constitution clearly states that all justices of the Supreme Court are appointed to an initial seven-year term – not automatic lifetime tenure. The framers of our state Constitution did that for a reason, and we have to believe that the Senate President understands and respects that.”

Senate President Sweeney's lines in the sand of been known to shift. After Christie's budget address Sweeney said that the state would not have a budget without the reinstatement of the Corzine income tax increase on residents earning over $400K. Later he and Assembley Speaker Race Card Oliver suggested that half the Corzine tax would do. After 58% of the school budgets in the state were defeated at the polls, there has been little talk if any talk of a standoff over the Corzine income tax surcharge.

It remains to be seen whether or not the political winds will blow away Sweeney's most recent line in the sand.

But what if Sweeney sticks to his guns this time? What remedy would the Christie administration have?

Politickernj reports that the rules of the court empower the Chief Justice to appoint a retired Supreme Court Justice or the most senior appellate court judge to serve temporally in the event of a vacancy. Montclair State Professor Brigid Harrison told Politickernj that Wallace could retire and Chief Justice Stuart Rabner could appoint Wallace to replace Wallace.

What if the Christie administration sued the Senate, challenging the constitutionality of the rule that allows them not to hold hearings and provide advise and consent? What if the administration challenged the constitutionality of the court rules that empower Rabner to replace Wallace?

Has Rabner already disqualified himself from hearing such a case? I found it unusual that he issued a statement critical of Christie's choice not to reappoint Wallace.

Such scenarios would be great entertainment, but I doubt they will happen. My bet is Patterson is confirmed, but not until Sweeney reads some polling data indicating that the public is again with Christie.