The justice who wanted to stay on the Supreme Court too much

During the governorship of Chris Christie, the political landscape in New Jersey has become a distorted world of illusions where incivility and bad behavior are considered acceptable and truth is what the Big Man in the Statehouse says it is, no matter the evidence to the contrary. The latest case study is Christie’s decision to remove Helen Hoens from the once venerable New Jersey Supreme Court.

Christie has demonstrated little respect for legal institutions, including the judiciary—except, of course, to the extent they play parts in his plan to rise higher in  politics. He apparently believes that, standing on the ruins of the integrity of the United States attorney’s office and the state supreme court, he will more easily reach the White House. The voters of New Jersey have reinforced that belief.

Christie used his prosecutorial powers to eliminate impediments to his ambitions, otherwise known as other politicians. The main-stream media  pretended that never happened—it just looked like it did. Remember what happened to John Bennett? Or the subpoenas dropped on U.S. Sen. Robert Menendez? How about the raid on Joe Doria’s home and office just weeks before the election?  Now, for the same reasons, he is bent on destroying the independence of the  state supreme court and, once again, the major media outlets in New Jersey are pretending he is not.

Let’s talk about Hoens. To read recent news accounts of Christie’s decision to dump the very obedient Ms. Hoens from the court, we are led to believe this is actually just a continuation of some feud between Democratic legislative leaders and the Republican governor. He wanted to save Hoens from the “animals”—Democrats on the Senate Judiciary Committee—who would review her credentials.

Nowhere do we read of the most important issue raised by the behavior of Hoens on the court, her repeated failure to recuse herself from participation in decisions that touched on Christie’s political positions. She acted very much as if she wanted too much to stay on the court.

The three most egregious examples were her decisions to participate in the school aid ruling and in the cases involving the reduction of benefits to the judiciary and the future of the Council on Affordable Housing (COAH).

In all three cases, Christie made votes against his position a litmus test of his definition of what constitutes an “activist” court or who is acting like an “activist” justice. Hoens, of course, knew she was up for reappointment during Christie’s term so she knew she was under pressure from the man who doesn’t mind bullying anyone, including members of the state’s highest court.

But there is more.  Hoens’ husband is Robert Schwaneberg, an at-will aide to Christie, a man who works at the pleasure of a governor who often shows his displeasure at being crossed.  Helen Hoens quite simply should have recused herself from any high-stakes controversy in which Christie had trumpeted his position. It is for others to decide, after due process,  whether voting on an issue that might have affected her husband’s position is a conflict of interest. But it is not much of a reach to see that her decision to vote for Christie’s positions on such high stakes issues certainly created an appearance of conflict.

No hard rule exists for justices concerning when they should recuse themselves, according to Winnie Comfort, a spokesman for the court. But former Justice Virginia Long frequently recused herself if any case touched even in a minor way on family members or former colleagues.  Chief Justice Stuart Rabner—whose own tenure on the court is probably doomed—recused himself on school and other issues that touched on his work with the Corzine administration. He served as counsel to the former governor.

Hoens did not deserve tenure on the court, but the reason was not what Christie offered  or what the press reported it to be. She forfeited her right to remain on the court by wanting to remain so much she could not see the damage she was doing to the independence of the tribunal. She was abetted by Christie himself who now hypocritically absolves himself from the consequences of his unseemly behavior by blaming his decision on Democratic “animals.”

The media and the bar should have been outraged by Hoens’ decision to participate in cases that were considered by Christie to be tests of his view of the judiciary and loyalty to him instead of loyalty to the law. Neither was. Two important civil institutions rolled over—as they have in the past—when the Big Man stomped his feet.

This obsequiousness undoubtedly will continue and even grow if Christie wins a second term by a margin that will validate his claims for a shot on the presidency.

That’s scary.

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