Supreme Court Battles Old Hat for New Jersey

By David Cruz

Even as the nation was still learning about the death of justice Antonin Scalia, Republican presidential candidates were already being asked about whether the current president — with 11 months left in his term — should choose Scalia’s successor. Front-runner Donald Trump articulated the prevailing GOP opinion.

“I think it’s up to Mitch McConnell. It’s called delay, delay, delay,” he said to great applause at Saturday’s debate.

The Senate Majority Leader has already said that he won’t consider any nominee President Obama presents. The partisan divide on judicial appointments has been an ongoing story in New Jersey, where the governor has battled the Legislature over judicial appointments for years, with Democrats sending pick after pick packing, in the interest, they say, of maintaining balance on the court.

“It’s not even a question of delay,” scoffed Republican Assemblyman Michael Patrick Carroll. “Sen. [Steve] Sweeney has pretty much announced don’t even bother sending me a nominee unless he’s a Democrat. Can you imagine what would happen down in D.C. if the Republicans announced we will not consider any Obama appointee unless he is a Republican? They’d have a kitten and rightfully so. You really shouldn’t have that kind of partisanship.”

Senate Judiciary Committee member Ray Lesniak disagreed. “We’ve certainly considered and approved other of Gov. Christie’s nominees but he has to send someone up here who is qualified and fair minded, and that he hasn’t done yet,” he countered.

It’s been a long, strange trip for the governor and the Legislature, with the governor trying to fill vacancies on a high court court that, in theory, is supposed to be above politics, but whose composition has been — by unwritten rule — filled by a balance of Democrats and Republicans, appointed by the partisan chief executive who happens to be in office at the time.

“Traditionally, we’ve had four members of the court have been of the governor’s party and three have been of the other party,” added Carroll. “So the governor’s right. We should have four members of his party and when there’s another governor of the other party, then there should be four members of that party.”

The governor has managed to get two appointments to the state’s high court but has complained every step of the way, since one of the court’s current members is technically an Independent, and with one vacancy, which Democrats have refused to cooperate on filling, the governor has fallen short on his goal to fundamentally reshape the court in his philosophic image, that is that the Constitution is not a living breathing document.

“The problem with ‘living and breathing’ is what happens if it lives and breathes in a way that you don’t like,” said Carroll. “Let’s say, for example that you’re a staunch liberal Democrat and a judge decides that the Constitution lives and breathes today so as to require school vouchers. Presumably, you’re not going to be happy.”

And unhappy will best describe an electorate after they’ve been bombarded by months of heated political debate over an appointment to a court that’s supposed to be beyond all that.