‘A Solution in Search of a Problem’: NJ State Bar, Judiciary React to Possible Constitutional Amendment on Judicial Appointments

“There is a proposal to create a court of appeals that mirrors the federal court system,” Senate President Nicholas P. Scutari said. “In the current system, you take the best of the Superior Court judges, leaving that court depleted. If we go to a system where the governor makes appointments, you can broaden the number of lawyers going to the bench.”

The New Jersey State Bar Association and the chief justice of the New Jersey Supreme Court have issued statements opposing an anticipated proposal to amend the New Jersey Constitution to make it so Appellate Division judges are appointed by the governor, rather than by the chief justice of the Supreme Court.

A proposal outlining such an amendment has not been introduced, but the Senate president has confirmed the proposal is under consideration and many in the legal community expect it will be introduced soon.

Critics say the change would politicize the appointment process for Appellate Division judges.

Chief Justice Stuart Rabner issued a statement calling the Appellate Division “one of the finest courts in the nation” and describing it as composed of gifted judges who gained valuable experience at the trial court level.

“The Constitution of 1947 shaped an effective and balanced intermediate court that has existed for three-quarters of a century,” Rabner said. “To amend the Constitution in a way that would politicize the appointment process would have real consequences. Among other serious concerns, it would lead to vacancies that would, in turn, delay justice for countless litigants.”

According to sources and statements from legal community leaders, the proposal would transfer the authority to appoint Appellate Division judges from the chief justice to the governor, who would be acting on the advice of the Senate.

Rabner said that before any amendment is considered, the proposal and its impact on the cause of justice should be carefully debated and evaluated.

The New Jersey State Bar Association also issued a statement and a resolution Wednesday that opposed the expected proposal and the “politicization” of the Appellate Division. The NJSBA said it believes the creation of a new procedure to appoint Appellate Division judges that requires gubernatorial nomination and advice and consent of the Senate would threaten the independence of the New Jersey Judiciary and further expose it to the political process.

The resolution said the changes would “inevitably” insert ”politics into the appointment process, without transparency as to the rationale for the proposed change and without input from any stakeholders.”

Currently, judges of the Superior Court and the state Supreme Court are selected through gubernatorial appointment and are subject to advice and consent of the state Senate. The state’s judicial selection process is also subject to senatorial courtesy, an unwritten rule where senators from a nominee’s home district must approve their nomination.

The nomination of Associate Justice Rachel Wainer Apter to the New Jersey Supreme Court was held up by Sen. Holly Schepisi, R-Bergen, for nearly 18 months after she was first nominated to the high court. An agreement between Schepisi and Gov. Phil Murphy was reached only after Wainer Apter considered moving out of Bergen County to remove the hold on her nomination.

New Jersey State Bar President Timothy F. McGoughran told the Law Journal that getting the Senate’s advice and consent on another 28 judges in the Appellate Division just seems like a bad idea.

“It just seems to me that this is a power play,” McGoughran said. “It is a solution in search of a problem.”

Senate President Nicholas P. Scutari told the Law Journal that he has not made an “ultimate decision” on whether or not the proposed amendment to the state’s constitution would be introduced.

“There is a proposal to create a court of appeals that mirrors the federal court system,” Scutari said. “In the current system, you take the best of the Superior Court judges, leaving that court depleted. If we go to a system where the governor makes appointments, you can broaden the number of lawyers going to the bench.”

Scutari said he has spoken with lawyers in the state who are not willing to take a seat on the Superior Court but would be willing to be appointed to the Supreme Court bench.

“The thought process is that we might be able to get really good lawyers interested if we can get them directly to the court of appeals,” Scutari said.

The senate president stressed that he has not decided on the proposed change to the constitution but said he was “warming” to the idea. He noted that if such a proposal were to be put forth, the legislature would have to do it soon and that it would require bipartisan support.