A task force of the New Jersey State Bar Association that held hearings and considered complaints concerning problems with the way judges are selected has concluded that the state’s method is still the best approach and should be maintained.
The bar’s Task Force on Judicial Independence released a 55-page report on Thursday that included 11 recommendations, several of which seek to ensure that the current system not just remains unchanged but is implemented as originally envisioned. It acknowledges that some who argued passionately for change may be disappointed.
“The Task Force was of the opinion it would be a grave disservice to all of the people of New Jersey if it were to put forth recommendations urging constitutional changes for the sake of the changes themselves, without being strongly convinced that any proposed change held out the promise of a stronger, better judiciary,” the task force wrote in its report. “In sum, after examining the procedures used in other states, the Task Force was unable to conclude that such procedures, or 46 various permutations thereof, were so obviously superior to New Jersey’s that constitutional change was warranted.”
Delays on the appointment of Superior Court judges and Gov. Chris Christie’s refusal to renominate two sitting Supreme Court judges — and his delay until nearly the last minute to give tenure to Chief Justice Stuart Rabner — had outraged the state’s legal community and prompted Ralph Lamparello, past-president of the bar, to create the task force in 2013.
Christie did renominate Rabner and there is now only one Supreme Court vacancy — filled by a Superior Court judge temporarily assigned — that is not likely to change as long as Christie remains in office if the Democrats continue to hold the Senate. Still, that has not reduced the sense of urgency to ensure that the state’s judiciary remain independent and continue to be held in high esteem.
“The fact that there is still an opening on the Supreme Court is unsatisfactory,” Lamparello said.
“It’s as relevant today as it was when the task force began,” agreed Paris Eliades, current NJSBA president. He called the report “a balanced, thoughtful analysis that exudes nonpartisan fairness and will help us map out our future.”
Co-chaired by two former judges, the task force held four public hearings last year and heard calls for changing the process by which judges are nominated, improving civics instruction in schools to ensure students understand the importance of an impartial judiciary and even bringing misconduct charges against Christie, a lawyer, for not filling seats on the court.
Ultimately, the members recommended a conservative approach, rejecting calls for New Jersey to adopt a system in which a nominating commission would recommend judicial candidates. It also rejected the notion of elected judges, which a majority of states use. Instead, it determined that the current system, in which the governor submits his suggestions to the Bar Association and agrees not to nominate anyone the bar deems unqualified, and then the Senate has to confirm the nominees, has worked well and should continue.
“Although such an approach (a nominating commission) may have worked in some of the states that have adopted it, success has not been uniform,” the commission wrote in its report. In regard to electing judges, it wrote, “A judiciary subject to the whims of electoral politics faces an ever-present risk of losing its judicial independence.”
[related]It also rejected calls to change the tenure rules for judges — currently, a judge serves an initial term and then receives tenure until age 70 if approved for reappointment. The report states that testimony it heard about changes in the way judges are being reappointed making sitting judges feel insecure or discouraging others from seeking judgeships were “unsupported.”
The task force also called on the bar to reconsider its support for a constitutional amendment that would require judges be automatically given tenure until retirement after an initial seven-year term unless they have demonstrated unfitness.
“While the Task Force was, of course, aware that more recently controversies had arisen in connection with certain recent Supreme Court reappointments, it was not convinced that enactment of such a presumption, as a constitutional mandate, was an effective method of forestalling such controversies,” the report states.
While many have lamented the use senatorial courtesy — the unwritten practice in which a state senator can hold up the nomination of a resident of his home county without giving a reason — the task force determined that making any recommendations about the practice was outside of its mandate. It did, however, urge the bar to fight to prevent any senators from trying to exercise courtesy on any renominations.
Noting judges have not received a pay increase in seven years, the task force called for annual cost of living adjustments and urged changes to ensure that the commission created to review the salaries of public officials be fully constituted and meet regularly.
Eliades said he strongly supports COLAs for judges, because forcing them to work for so long without a raise is discouraging.
“We do want the best and the brightest in the judiciary,” he said.
Finally, stating it did not have adequate time to study two noteworthy issues brought to its attention, the task force suggested the bar create two new study groups: one to examine issues of judicial independence in the municipal courts and the other to suggest changes in civics education to ensure students get a full understanding of the working of government and the courts.
Lamparello said reforms in both the municipal court system and to civics education are needed.
“We’ve got to educate our young people, we are already on board with that,” he said, noting the bar has some educational programming already. “That’s a no-brainer.”
He said the NJSBA will consider the recommendations during its annual convention next month. It’s unclear what actions the members may take — for instance, he noted that the bar’s board of trustees was unanimous in calling for the amendment guaranteeing reappointment after seven years for all judges who have not demonstrated they are unfit for the job.
“The full bar needs to consider these recommendations and decide what, if any, we will try to advance,” Eliades said. “We plan to keep the discussion going.”