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N.J. Supreme Court: The Kean Court

By David Wildstein, June 07 2020 10:05 pm

Brendan Byrne’s Supreme Court makeover — a Chief Justice and three younger than usual Associate Justices — plus William Cahill’s pick of 49-year-old Robert Clifford — meant that Gov. Thomas Kean would get to name only two Supreme Court Justices during his eight years as governor.

Nine months into Kean’s first year as governor, he had the chance to nominate an Associate Justice when Morris Pashman reached the mandatory retirement age of 70.

One year earlier, President Ronald Reagan nominated the first woman justice of the U.S. Supreme Court.

Byrne had flirted with the idea of putting the first woman on the New Jersey Supreme Court twice, but now Kean was under some pressure to finally do that.

The New Jersey Women’s Political Caucus entered the fray by submitting four names — all Republicans, like Pashman — for Kean’s consideration: Superior Court Judge Rosemary Higgins Cass, a former Catholic Charities social worker; Julia Asheby, an appellate court judge from Monmouth County; U.S. Magistrate Serena Peretti; and former Weehawken Municipal Court Judge Marie Garibaldi, the first woman to serve as president of the New Jersey Bar Association.

Kean was also considering two men: Atlantic County Assignment Judge Philip Gruccio for a court that had no justices from South Jersey since Vincent Haneman retired in 1971; and Gary Stein, one of his top policy advisors and the head of his 1981 gubernatorial campaign in Bergen County.

Peretti had some pull.  Her brother, Peter Peretti, was the managing partner at one of the state’s most influential law firms and her father had been a judge in Passaic County.  Peretti had won a Passaic city school board seat at age 28, and three years later, in 1959, had run a strong race as a Republican State Assembly candidate in Passaic County.  The Perettis had backed Kean’s father, Rep. Robert W. Kean (R-Livingston) in the 1958 GOP primary for U.S. Senate.

Kean went with Garibaldi, a 47-year-old tax attorney — she was a partner at the law firm Peter Peretti ran — and has served as co-chair of Kean’s 1981 campaign for governor.  Her mother was the bookkeeper at the Clam Broth House, once a Hoboken legend.

Garibaldi sailed through her Senate confirmation, 37-0, becoming the first woman to serve on the New Jersey Supreme Court.

Sidney Schreiber retired in 1984, creating Kean’s second top court opening,

The South Jersey legal community pushed for representation, but Kean went with a member of his own staff, Stein, the director of policy and planning.  The 55-year-old Stein had been involved in Republican politics in Bergen County — he lost a race for mayor of Paramus by 20 points in 1964 — but had never served as a prosecutor or judge.

Stein was confirmed 34-2, with two South Jersey senators, Raymond Zane (D-Woodbury) and Daniel Dalton (D-Clayton) opposing him because they felt South Jersey should be represented on the Supreme Court.

Kean’s great hurdle came in 1986 when Robert Wilentz came up for reappointment after seven years as Chief Justice.

Some Republican leaders strongly opposed Wilentz, whom they considered a judicial activist who had thrust the unpopular Mount Laurel decision on them, and pushed Kean — fresh off a 70% landslide re-election — to not reappoint him.  State Sen. Gerald Cardinale (R-Demarest) led the opposition to Wilentz.

Kean ultimately came down on the side of judicial independence, affirming his belief that justices who committed to no major blunders ought to be renominated even if they don’t share the ideology of the governor at that time.

Wilentz also faced a residency issue: he was living in Manhattan, saying he wanted to make it easier for his wife to receive cancer treatments.  He acknowledged that he spent enough time in New York that he had to pay income tax there.  Several senators felt New Jersey’s Chief Justice should live in New Jersey.

He claimed his official residence as Deal, rather than Perth Amboy, to stop a fierce critic, State Sen. Peter Garibaldi (R-Monroe), from using senatorial courtesy to block him.

The entire confirmation battle in a 23-17 Democratic Senate was touch-and-go.

Five  Democratic senators – Frank Pallone (D-Long Branch), Paul Contillo (D-Paramus), Catherine Costa (D-Willingboro), Zane and Dalton – were voting against Wilentz’s confirmation.

That left it up to a Republican governor to sway three Republican senators to vote for a Democratic Chief Justice after Democratic Senate President John F. Russo (D-Toms River) couldn’t produce the votes for confirmation.

Kean lobbied hard, even threatening some Republican senators with a  primary if they didn’t vote for Wilentz.  He also horse-traded, which the onetime Assembly Speaker knew how to do as well as any governor in state history.

Bill Gormley (R-Margate) and Wayne Dumont (R-Phillipsburg), a former senate president, were the only two Republican senators on board for confirmation.

(In the Senate chamber for the vote was former Gov. Richard Hughes, who served as Chief Justice before Wilentz.  Dumont was the 1965 Republican candidate for governor and Hughes had slaughtered him.)

When the machines opened up for an up-or-down vote on Wilentz, the tally was stuck at 20-19.

Only Lee Laskin (R-Haddonfield), a Republican senator from Haddonfield, had not yet voted.  Laskin had served in the Assembly with Wilentz, but was facing extreme pressure from Republicans to stick with the majority of the caucus.

To get Laskin, Kean made a deal with Wilentz: he would agree to move back to New Jersey as soon as his wife’s health improved; and Kean sign legislation to mandate judges to live in the state – a law Wilentz said he would obey.

Laskin’s voted yes, with the Senate voting 21-19 to give Wilentz tenure as Chief Justice.

Something noteworthy from that battle: when Associate Justice Stewart  Pollock, a Republican named by Byrne, came up for reappointment, GOP senators approved him for tenure even though his voting record on the Supreme Court was nearly identical to Wilentz.

Next: The Whitman Court

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