Home>Campaigns>Who will the Supreme Court pick as the congressional redistricting tiebreaker? 15 questions — and answers — about what comes next

Who will the Supreme Court pick as the congressional redistricting tiebreaker? 15 questions — and answers — about what comes next

By David Wildstein, July 16 2021 3:05 am

The New Jersey Supreme Court inherited a political hot potato on Thursday after Democratic and Republican commissioners on the Congressional Redistricting Commission failed to agree on a consensus candidate to serve as the independent 13th member of the panel.

The State Constitution puts the burden of settling a tie-vote on a tiebreaker on the Supreme Court, who must now choose between the two candidates advanced by the commission: former Supreme Court Justice John E. Wallace, Jr., a Democrat, and former Superior Court Judge Marina Corodemus, a Republican.

Make no mistake: this is an election. There are as many as seven voters.  The winner will either be a Democrat or a Republican. Election Day is August 10.

Here are the answers to 15 questions the New Jersey Globe has fielded from readers.

1. Why is this a problem for the Supreme Court?  The Justices are now thrust into a partisan fight they don’t want to be in – and potentially with a national audience.  It will force the politically balanced top court to pick between the Democratic candidate and the Republican one, and while they are accustomed to taking on politically charged issues, the stakes are high.  Democrats have a narrow five-seat majority in the U.S. House of Representatives and any alteration of the congressional map could affect which party controls the chamber after the 2022 mid-term elections.

2. Doesn’t this happen every ten years?  This is the first time the two parties haven’t agreed on a 13th member for congressional redistricting.  The Supreme Court option wasn’t involved in 1991, 2001 and 2011.

3. Can the Supreme Court pick a different candidate?  No.  The Constitution requires them to pick one of the two names submitted by the commission.

4. Isn’t the tiebreaker always an academician? It’s never been anything else.  Political Science professors have held the tiebreaker post every decade since a commission began drawing legislative districts in 1981.

5. Why are the two picks ex-jurists and not political scientists this time? Everyone has a theory, and one is that in the age of social media and the national political divide, some college professors have tweeted their way out of consideration for a tiebreaker position by showing a clear political leaning.  Both parties were a bit cautious that if one side put up a former judge and the other an academician, the court might be inclined to go with someone who once wore a robe.  Another belief is that Democrats and Republicans didn’t want an activist tiebreaker who might want to draw their own map, but rather someone who could help mediate a deal.

6. Have Democrats and Republicans ever agreed on a map without the need for a tiebreaker?  Nope.

7. Was any history made with the candidate selection? Over the last 40 years, only white men – seven of them — have served as redistricting tiebreakers.  Wallace would be the first person of color to hold the post and Corodemus would be the first woman.

8. Do the parties want to win the Supreme Court vote?  Maybe not.  Some people think that both sides would rather lose the congressional vote and hope that Chief Justice Stuart Rabner will look to avoid being tagged as a partisan by making a Solomonic decision: whichever party gets the tiebreaker on congressional, the other will get an advantage on legislative redistricting.  Since all politics is local, some party leaders care significantly more about what legislative districts look like.  Remember, the rules for legislative redistricting are different and Rabner may pick whomever he wants.

9. Who is John Wallace?  He’s 79-year-old Harvard Law graduate and U.S. Army captain who was nominated to the Superior Court by Republican Gov. Thomas Kean in 1984 and to the New Jersey Supreme Court by Democratic Gov. James E. McGreevey in 2003.  When he came up for a tenured term in 2010 just two years before reaching the mandatory retirement age of 70, GOP Gov. Chris Christie refused to renominate him; Democrats wouldn’t confirm Christie’s replacement picks and the seat remain vacant for six years.

10. Who is Marina Corodemus? She’s a 65-year-old former Superior Court Judge from Middlesex County who was nominated to the bench by Democratic Gov. Jim Florio in 1993.  Since returning to private practice in 2004, she’s built a national reputation as an expert in Alternative Dispute Resolution.  Her older brother, Steven Corodemus, served as a Republican assemblyman from Monmouth County from 1992 to 200 and ran against Rep. Frank Pallone, Jr. (D-Long Branch) in 1996.  She has only made one campaign contribution since getting off the bench: $1,000 to Perth Amboy Mayor Wilda Diaz in her unsuccessful 2020 non-partisan re-election bid.

11. Why wouldn’t the Supreme Court automatically go with one if their own? Wallace is not overtly partisan and there is no question about his integrity.  But picking Wallace comes with some risk that the court will be criticized for picking someone who is not entirely independent.  He practices law at Brown & Connery, a politically active South Jersey law firm.  While he mostly concentrates on mediation and arbitration, a partner at the firm, Bill Tambussi, has been the counsel to the Camden County Democratic Committee for the last 32 years.  Tambussi is Democratic powerbroker George Norcross’ personal attorney and Rep. Donald Norcross (D-Camden) is a stakeholder in congressional redistricting.   Wallace could obviate even the appearance of a conflict by resigning from his law firm, but that’s not likely.  Democrats say he had to be courted to even agree to do the job.

One remote complication: if Wallace were to become the 13th member and then approve a Democratic map, Republicans in the U.S. Senate could take it out on another Brown & Connery partner, Christine O’Hearn.  Her nomination as a judge of the U.S. District Court has not yet been confirmed.

12. Will all seven justices vote? That’s not immediately clear.  Justice Fabiana Pierre-Louis served as a law clerk to Wallace, and she could potentially recuse herself.  If Wallace were a party to a case being heard by the Supreme Court, Pierre-Louis would almost certainly stay out of it; it’s not clear what the difference with Wallace’s candidacy will be. Recusals aren’t typically announced until they happen.

13. Won’t the vote just follow party lines? Even though three of the Justices are Republicans and four were nominated by GOP governors, there is no indication that the Supreme Court will vote in accordance with their party registration.  Indeed, when Republicans went to the Supreme Court to fight a Covid-related borrowing plan, the court unanimously backed up a plan approved by Murphy and the Democratic-controlled legislature.   There is a belief that on politically charged issues, Justices argue amongst themselves and then present a united front on a decision.

14. But what happens if they do split?
There is an unlikely scenario that the court deadlocks. Rabner and Justices Barry Albin and Jaynee LaVecchia go for Wallace. Justices Lee Solomon (a former Republican assemblyman), Anne Patterson and Faustino Fernandez-Vina vote for Corodemus. If Pierre-Louis abstains, then the court is tied 3-3 in their bid to break a deadlock on a tiebreaker.  In that case, Rabner would need to elevate a senior appellate court judge to end the stalemate.  The Chief Justice, of course, has discretion over who he could call up.  It’s a very New Jersey type of hypothetical.

15. Is the process just a lot of hurry up and wait?  Yes.  The Supreme Court has to vote on the congressional tiebreaker by August 10, but the U.S. Census Bureau isn’t expected to transmit the municipal population and census tract numbers until September 30, so the process of drawing maps can’t begin until then.

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