Hoens 2011 by SL John O'Boyle.JPG

Supreme Court Justice Helen Hoens in a 2011 file photo. She will soon depart the court following Gov. Christie's decision to not reappoint her.

(John O'Boyle/The Star-Ledger)

New Jersey’s Supreme Court, once regarded as a national model for the breadth and reasoning of its rulings, continues to be victimized by a bitter political feud.

A deadlock over appointments between Republican Gov. Chris Christie and the Democratic Senate that has endured for most of Christie’s time in office has left the seven-member court with two vacancies. A third could occur Oct. 26, when Justice Helen Hoens’ seven-year term will end.

The present vacancies are being filled by temporary justices named from the Appellate Division by Chief Justice Stuart Rabner. This has allowed the court to function, but its credibility with litigants and the public will inevitably be weakened if temps continue to help decide critical cases.

More serious still is the concern that judges at all levels who lack tenure will be tempted to shape controversial decisions to match the tastes of the governor who has the power to renominate them.

The state Bar Association considers what it calls the “current threats to weaken our judiciary” so significant that it asked two retired judges, Dorothea Wefing and Maurice Gallipoli, to co-chair a task force to address them. Good luck. The two sides are dug in, and a lasting solution, as former Chief Justice Deborah Poritz says, could require nothing short of a constitutional amendment.

For more than 60 years, since the 1947 constitution was written, the system worked well. Governors nominated judges and Senates vetted and confirmed them, regardless of which political party controlled which branch of government. No sitting Supreme Court justice who was eligible for reappointment was denied it.

All that ended with Christie’s election. As a candidate, he had promised to overhaul what he called an “activist liberal” Supreme Court. Once in office, he set out to deliver. And in so doing, he opened questions on fundamental issues that had seemed to be long settled.

The biggest question now: Is a justice who performs honorably during his or her initial seven-year term entitled to reappointment, to serve to the mandatory retirement age of 70?

Gov. Tom Kean, an icon of New Jersey Republicans and a man Christie calls his mentor, seemingly had nailed down the precedent in 1986, when he renominated Chief Justice Robert Wilentz, in spite of the Wilentz court’s Mount Laurel II decision requiring developing communities to provide affordable housing, a concept Kean had called “communistic.”

He did so, he explained, to preserve the independence of the judiciary. “If any judge in the state is worried about how he should make a decision and that would affect his or her renomination, then the quality of justice is not going to be what you and I want it to be,” Kean said.

That principle seems foreign to Christie. In 2010, in keeping with his pledge to remake the court, he refused to renominate Justice John Wallace, a widely respected jurist and the court’s only African-American member, to a second term — although, strangely, he didn’t cite a single Wallace vote on the court that he considered “activist.”

Even harder to understand was his decision to deny tenure to a second sitting justice, Helen Hoens, a Republican whose voting record on the court has basically lined up with the governor’s own positions. Her service has been exemplary, as even Christie noted when he bypassed her and nominated Superior Court Judge Faustino Fernandez-Vina, a Hispanic Republican from Camden County. In a classy valedictory speech last week, Hoens admitted that she “wasn’t planning on leaving quite so soon,” but withheld any comment “on the roiling waters of politics that swamped the little boat of my judicial career.”

Finally, if Christie is re-elected, as the polls indicate, he’ll soon have another opportunity to dump a justice who displeases him. This time it could be Chief Justice Rabner, whom Christie has publicly labeled “activist” and “arrogant” and whose initial term expires June 29, 2014.

Ever since Christie’s snub of Wallace, Democrats and much of the state’s legal community have been up in arms. Eight retired Supreme Court justices issued an unprecedented joint statement calling it a violation of the clear intention of the authors of the 1947 constitution that reappointment to the bench “would be denied only when a judge was deemed unfit.” Unfortunately, if that indeed was their intent, they neglected to make it explicit.

Another unresolved question is this: What constitutes partisan balance on the high court? Tradition since 1947 has been that the justices are divided four to three between the major parties. But a disagreement last year over how to categorize individuals who are registered as independents was a major factor in the Senate’s rejection of two Christie nominees, whose confirmation, Democrats said, would have given the GOP a five-to-two edge. (Senate Democrats will hold a hearing Thursday on Fernandez-Vina’s nomination and have signaled that they might confirm him, but only because he would simply replace Hoens, another Republican.)

If the Democrats retain control of the Legislature Nov. 5, they could attempt to pass a constitutional amendment to settle these questions. If, however, the margin of Christie’s expected victory is big enough to tip Senate control to the Republicans, the stalemate will end automatically. Christie will name whomever he wants to fill Supreme Court vacancies and a grateful Senate majority will go along — regardless of what enduring effect it might have on judicial independence.

2 trchristie HINDASH.JPG

CONNECT WITH US: On mobile or desktop:

• Like Times of Trenton on Facebook

• Follow @TimesofTrenton on Twitter