Federalist Society Inspires NJ Justice To Refuse to Cast Votes

For 63 years, not one sitting New Jersey Supreme Court Justice who had sought to be re-appointed by the Governor had been refused … until Gov. Chris Christie took office and decided to replace Justice John Wallace with a Republican nominee of his own.

That move did not sit well with the Democrats in the state Senate who announced that they would refuse to even consider confirming Christie’s nominee, leading Chief Justice Stuart Rabner to appoint a senior judge of the appellate division to serve as a temporary justice in order to fill the vacant seventh seat.

And everything seemed fine until Justice Roberto Rivera-Soto, whose term expires in 2011, discovered an article from The Federalist Society [PDF] claiming that allowing the Chief Justice to fill this vacant seat is unconstitutional.

And now, inspired by this article, Rivera-Soto announced that he will refuse to participate in any more decisions because the current make-up of the court is unconstitutional:

In an unexpected action that rocked New Jersey’s legal community Friday, New Jersey Supreme Court Justice Roberto A. Rivera-Soto declared he will abstain from the high court’s decisions because he maintains Chief Justice Stuart Rabner did not have the constitutional power to appoint Judge Edwin Stern to temporarily fill a vacant seat on the seven-member panel.

In two routine decision made public Friday, Rivera-Soto stated it was not necessary to appoint a temporary justice, and that he is abstaining from decisions because the court’s current makeup is unconstitutional. He argued that only the governor has the power to appoint a justice.

“The assignment of a Superior Court judge to serve on this court to fill a vacancy resulting from a political impasse between the executive and the legislative branches thrusts the judiciary into that political thicket, all the while improperly advancing one side’s views in preference over the other’s,” Rivera-Soto wrote. “The Constitution, sober and reflective court practice, and everyday common sense each counsels against the foolhardy steps the court today takes.”

Democrats in the state Senate are now demanding that Rivera-Soto resign from the court, accusing him of waging this stunt in an attempt to curry favor with Gov. Christie in hopes of being re-appointed when his term expires:

“Today’s dissent from Justice Rivera-Soto shows contempt for the law, disregard for his fellow jurists and utter disdain for the right of New Jerseyans to have their cases heard by a full Court,” [Senate President Stephen M.] Sweeney said. “It officially cements his place as the worst and most ethically challenged justice in the history of the modern judiciary.

“If he is so disinterested in fulfilling his constitutional duties, then he should step down and let the governor nominate and the Senate confirm a new justice who will actually participate in court matters,” Sweeney said. “It’s very telling that not one of his colleagues — nor any other jurist since 1947 — would agree with his cynical, transparent and politically motivated temper tantrum, which is either a hail-Mary attempt to curry favor among conservatives to save his own reappointment or an effort to undercut the state Supreme Court’s authority on the eve of legislative redistricting.

“This isn’t the first mistake Rivera-Soto’s made since joining the Court, but it should be his last,” Sweeney added.

Sen. Nicholas P. Scutari (D-Union) chairman of the Senate Judiciary Committee, also called on Rivera-Soto to resign.

“Justice Rivera-Soto’s outright refusal to perform his judicial duties demonstrates a complete disregard for the position he holds and for the residents of this state,” Scutari said. “The timing of his move is suspect. With his reappointment around the corner, this smacks of a desperate attempt to distract from his ethical lapses and grab the attention of right wing pundits who share a disdain for the court. This is an act of true arrogance. He is making an absolute mockery of the judiciary, and is clearly no longer fit to serve on the court. He should immediately step down.”