Tuesday, September 28, 2010
New Jersey Supreme Court Chief Justice Stuart Rabner earlier this month assigned Judge Edwin H. Stern, head of the state Superior Court Appellate Division, to temporarily fill a vacant seat on the state high court. The temporary assignment comes in the wake of Republican Governor Chris Christie's refusal to reappoint Supreme Court Justice John E. Wallce and to nominate Anne Patterson to replace him. Democrats in the legislature have refused to schedule a confrimation hearing for Patterson, thus leaving the vacancy.
To scholars and students of the federal Constitution, Chief Justice Rabner's move may seem surprising. After all, can we imagine Chief Justice Roberts appointing a replacement for Justice Kagan in those cases in which she will recuse herself this term? Temporary assignments by designation are routine in the federal circuit courts, but an assignment by the Chief to the Supreme Court itself, even if only temporary, would raise Appointments Clause and separation-of-powers problems.
Not (necessarily) so under the New Jersey state constitution. The state constitution of 1947 contains its own appointments Clause, vesting appointment of state supreme court justices in the governor, with advice and consent of the state sentate. But it goes on:
The Supreme Court shall consist of a Chief Justice and six Associate Justices. Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court.
New Jersey Constitution, Article VI, section 2, paragraph 1.
Justice Wallace's departure does not create a quorum problem, so the question is: Does this provision empower (or require) Chief Rabner to assign Judge Stern to the court?
Earl Maltz, Distinguished Prof at Rutgers Camden, argues in this Federalist Society briefing paper that it does not. Maltz traces the text, history, purpose, and practices of the provision and concludes that "[w]hen necessary" means when the court lacks a quorum. According to Maltz, because the vacancy creates no quorum problem, Chief Rabner lacks authority here.