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“I want to be buried in Hudson County so that I can remain active in politics." -- Gov. Brendan T. Byrne (1924-2018)

N.J. Supreme Court: The Byrne Court

By David Wildstein, June 07 2020 10:03 pm

Gov. Brendan Byrne’s first opportunity to nominate a Supreme Court Justice came in early 1975 when Associate Justice Nathan Jacobs turned 70.  He asked former Chief Justice Joseph Weintraub to vet candidates for the post.

His pick was Sidney Schreiber, 60, former War Crimes prosecutor for the U.S. Army after World War II who drafted the first cases against Nazi soldiers at German concentration camps.  He was serving as general counsel to New Jersey Natural Gas when Cahill had named him to the Superior Court three years earlier.

Schreiber had also been Weintraub’s law partner.

Byrne denied that he picked Schreiber to replace Jacobs because he wanted to maintain Jewish representation on the state’s highest court.   He did acknowledge that it was a Republican seat and Schreiber was a Republican.

A few weeks after the Schreiber nomination, Frederick Hall announced that he would retire three years early.  That gave Byrne his first Democratic appointment to the Supreme Court.

His first choice was State Sen. Stephen Wiley (D-Morris Township), a brainy liberal Democrat who chaired the Senate Education Committee – he sponsored a controversial school aid bill — and was one of Byrne’s top allies in the legislature.

Wiley, 47, had also served as chief counsel to Gov. Robert Meyner in 1960 – Byrne had earlier served as Meyner’s executive secretary (now chief of staff).  When Meyner left office in January 1962, the two formed a law firm, Meyner and Wiley.

Byrne held off nominating Wiley until early 1976 as he waited for the Supreme Court to decide if Wiley’s landmark Thorough and Efficient (T&E) law was constitutional.

A three-way split by the top court – some justices dissented for different reasons from a rare unsigned court opinion – eventually led to the creation of a state income tax.

The formal nomination of Wiley didn’t come until August 1976.

The timeline for Democrats was funky.

Byrne had hoped the Senate would confirm Wiley when they returned into session on September 13.

That didn’t appeal to the Senate Democratic leadership.  Had Wiley resigned before September 24  to join the court, it would have triggered a November 1976 special election to fill his Senate seat – a race they were almost certain to lose.

The other senator from Morris County, Republican James Vreeland (R-Montville), threatened to use senatorial courtesy to block Vreeland’s nomination.

Vreeland faced pressure from Republicans who wanted to pick up the Senate seat.  Assemblyman John Dorsey (R-Boonton), former Assemblyman Albert Merck (R-Mendham) and former Rep. Joseph Maraziti (R-Boonton) all began preparing for a sudden Senate race.

In the end, Senate Judiciary Committee Chairman James P. Dugan (D-Bayonne), the Democratic State Chairman, refused to allow Vreeland to exercise courtesy over a sitting senator.  The  Senate subsequently decided that their own members and former members were not subject to the unwritten courtesy rules.

But courtesy was not Wiley’s biggest problem.

He faced a colossal roadblock when political opponents cited a provision in the State Constitution barring legislators from taking a job after voting to raise the pay of that post during the current legislative term.  Wiley had voted to raise judicial salaries in 1974, his first year in the Senate.

(Another senator, John Horn (D-Camden), the head of the rubber workers union, faced a similar obstacle after Byrne named him Commissioner of Labor.  But to avoid the controversy, Byrne instead named him assistant commissioner and from there, acting commissioner.  Horn wound up making $4,200-per-year more that way.  Camden Mayor Angelo Errichetti won his seat in a 1976 special election.)

Attorney General William Hyland issued an opinion that Wiley could serve if he didn’t take the $3,000-a-year pay raise that went to other justices.

The Morris County Taxpayers Association and Vreeland didn’t buy that and filed a lawsuit to block Wiley’s ascent to the top court.

The Senate voted 30-5 on September 15 to confirm Wiley’s nomination.  Just four Republican senators and independent Anthony Imperiale voted against him.

Still, Wiley agreed not to take the oath as an Associate Justice until the courts settled the issue.  He didn’t resign either, but announced that he would not participate in Senate votes until his situation was resolved.

Superior Court Judge George Schoch ruled that Wiley’s appointment was unconstitutional.

An appeal went directly to the Supreme Court, which in March 1977 ruled 4-3 to uphold Schoch’s decision.  Worrall Mountain, Robert Clifford and Mark Sullivan were in the majority, along with Superior Court Judge Lawrence Carton, who was temporarily filling the seat Wiley was supposed to get.  (Carton, a former Republican mayor of Middletown, had been Vanderbilt’s law partner; his son, Peter Carton, is the longtime Middletown Republican Municipal Chairman.)  Richard Hughes, Morris Pashman and Schreiber were in the minority.

On the day the Supreme Court announced their decision, Byrne picked his 45-year-old chief counsel, Alan B. Handler, to replace Hall on the court.

Handler had served as First Assistant Attorney General in the Hughes administration.  Hughes had nominated him to serve as a Superior Court Judge in 1968 and he had been elevated to the appellate division in 1973.

In mid-1976, Handler left the bench to replace Lewis B. Kaden as Byrne’s chief counsel.

Handler was confirmed by the Senate with little difficulty and after the Supreme Court seat had been vacant for more than two years.

Wiley returned to the Senate after a lengthy absence.  He ran for re-election in 1977, but Dorsey beat him by a 54%-46% margin.

Byrne’s next Supreme Court picks came in 1979.  Mountain turned 70 in June and Hughes, the Chief Justice, in August.

For the first time, there was talk about Byrne breaking a glass ceiling by nominating the first woman or the first black justice.

New Jersey Public Advocate Stanley Van Ness was mentioned as a Supreme Court candidate, as were three women: Superior Court Judges Virginia Long, Byrne’s former banking commissioner; Sonia Morgan; and Sylvia Pressler.

There was also talk of another Wiley nomination; now out of the legislature, the constitutional prohibition that blocked him the first time was now gone.

Another name on Byrne’s list, Dickinson Debevoise, was nominated by President Jimmy Carter to serve as a U.S. District Court Judge.

Byrne’s special counsel at the time, 46-year-old Stewart Pollock, was a registered Republican and his frequent tennis partner, and that made him an east pick to succeed Worrall.   The governor had used the same move during his first term when he nominated Pollock, a left-of-center Republican, to the GOP seat on the New Jersey Board of Public Utilities and the State Commission of Investigation.

Pollock had faced some criticism for taking a job with Public Service Electric and Gas after leaving his BPU post and the two Republican senators from Morris County – Vreeland and Dorsey threatened to block his nomination — but not enough to cause him any real political trouble.

For a while, it looked like Handler and Wiley were the leading candidates to replace Hughes as Chief Justice.

Byrne was anxious to move the Supreme Court to ideological bent of the court to the left after six years of Hughes, who was widely viewed as a moderate.

His pick for Chief Justice was a surprise: Robert Wilentz, 52 a former assemblyman from Perth Amboy whose father, David Wilentz, prosecuted the Lindbergh kidnapping case as state attorney general and spent decades as the Middlesex County Democratic boss.

Wilentz was viewed as an intellectual giant during his days as a young assemblyman, and as the head of one of the state’s most influential law firms.

The Senate confirmed Wilentz by a 37-1 vote, with only Essex County Republican James Wallwork (R-Short Hills) voting against him.  Wallwork had questioned whether Wilentz really lived in Perth Amboy, or in a New York City apartment he owned.

The vote on Pollock was 38-0.

Byrne made his fifth and final Supreme Court appointment in 1981 when Sullivan reached his mandatory retirement age in August, three months before the gubernatorial election to pick his successor.

There was never any doubt that Byrne intended to make the pick, especially with Republicans aiming to elect a governor and take control of the State Senate.

There was again speculation that Byrne would name the court’s first woman or black justice.

Van Ness was in the short list again, along with Superior Court Judge William Walls – later a federal judge – and Raymond Brown, a famed criminal defense attorney.   Pressler and Morgan were again considered; so were Superior Court Judges Marilyn Loftus, who was from Byrne’s hometown of West Orange, and Florence Peskoe, a family court judge from Monmouth County.

And Wiley was now back on the list, again.

In the end Byrne again promoted from within.

Sullivan was replaced by Daniel J. O’Hern, 51, who was serving as Byrne’s chief counsel at the time.  O’Hern had clerked for U.S. Supreme Court Justice William J. Brennan, Jr., who had served as an Associate Justice of the New Jersey Supreme Court before Dwight Eisenhower called him to Washington.  He had been the mayor of Red Bank and Byrne’s Commissioner of Environmental Protection before moving over to the front office.

Next: The Kean Court

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