The current judicial crisis offers and excellent opportunity to take a look at how New Jersey chooses and installs its judges — and how that process differs from many other states.
In 38 states, at least some appellate and major trial court judges are voted in, either in an initial election or a “retention” election following a first term. Supreme Court justices face competitive elections in 22 states.
New Jersey is one of only eight states in which no judges stand for election — presumably to keep the process free of politics.
But even without electioneering and fundraising, politics can — and does — play a large part in New Jersey’s judicial appointments, much to the concern of many judges themselves, who are worried about preserving an autonomous judiciary.
This is how it’s done in the Garden State:
Gubernatorial nominees: The governor gets to nominate all state-level court judges — Tax Court, Superior Court and Supreme Court — as well as judges of lower regional courts who handle cases for more than one municipality.
Governors traditionally have kept a political balance among judges — nominating one Democrat for each Republican. In the case of the Supreme Court, this has meant keeping a balance of 3-3 with the governor in power being able to appoint the seventh member from his party if an opening arises. An individual town’s judge or judges are appointed for three years by the municipality’s governing body and not subject to state review.
Qualifications: The state constitution requires only that Superior Court judges and Supreme Court judges must have been admitted to the state bar for at least 10 years on their nomination. As a practical matter, there are a number of other qualities candidates must possess. Judges have usually been politically active in one way or another: some have made political contributions: others have made friends with state Senators; and others are former state legislators. While not spelled out, political party affiliation is also a factor in nominations.. Although the New Jersey State Bar Association does not have an explicit role in the process, the bar has historically reviewed judicial nominations and let the governor or Senate Judiciary Committee know how it rates the candidate.
Courtesy: Yet another unwritten factor influencing whether a lawyer joins the bench is senatorial courtesy. Reportedly dating back to the mid-1800s, the rule means that no judicial nomination can move forward until the senator or senators representing the district and/or county in which the candidate lives give their approval. Numerous prospective judges, as well as other gubernatorial appointees, have been derailed or delayed due to a senator exercising courtesy. It held up the initial appointment of current Supreme Court Chief Justice Stuart Rabner and is reportedly one of the reasons there are 21 vacancies on the Essex County Superior Court bench.
Hearing: Each judicial nominee must clear the Senate Judiciary Committee, which is chaired by a member of the party in power in the upper house and dominated by that party, currently the Democrats. Confirmation hearings can be short love fests or drawn out and contentious. This process has also halted a number of nominees, including two of Gov. Chris Christie’s choices for the Supreme Court. If the committee clears a nominee, it goes to the full Senate, which has the final say. Typically, a nominee who is able to make it out of committee gets confirmed.
Do it again: State judges receive an initial seven-year term and then come up for renomination. Again, according to the constitution, the governor gets to decide whether to return a judge to the Superior or Supreme Court. Should he do so, and the Senate — following a hearing — reconfirms the judge, the jurist receives tenure until age 70, when the constitution says judges must retire. There are provisions that would allow for the impeachment or removal of a judge but this would be a rare action. This reappointment process was the focus on much scrutiny over the past several months with the approach of the expiration of the initial term of Supreme Court Chief Justice Stuart Rabner. Some interpret the constitution as meaning a judge should be reappointed unless there is good cause to deny tenure — such as poor judicial temperament. Christie did renominate Rabner, but said as he did so that the constitution left that decision up to him. Since the 1947 constitution created the modern judiciary, governors have declined to reappoint some Superior Court judges. Only two Supreme Court justices have not been renominated, both by Christie.
Caveat: The Chief Justice, as head of the state’s judiciary, has some say over moving judges within the court system. He can elevate Superior Court judges to the Appellate Division to hear appeals and choose the assignment judge for each of the court vicinages, which mostly follow county boundaries. He also can, and has had to, elevate the most senior appellate judges to the Supreme Court to fill vacancies — New Jersey’s has had two for a number of years.