Solving N.J.’s judicial vacancy problem would be giant task for Governor Murphy

Judiciary leaders have warned about an overtaxed stable of judges as they work to clear a staggering case backlog, but if Gov. Phil Murphy wants to give the courts a full cohort this year, he’d have to get more judges confirmed than he has since taking office in January 2018.

Seventy-three seats on the Superior Court bench are empty, and another 24 retirements are expected by the end of 2022, Judge Glenn Grant, the courts’ administrative director, told lawmakers last week. There are also two unfilled seats on the New Jersey Supreme Court.

That could leave 97 vacancies by the end of the year.

The result is an understaffed judiciary facing a slow process with only 14 judges awaiting confirmation as the state’s courts face a colossal case backlog created by the pandemic that prosecutors and public defenders said exacerbates the effects of the court vacancies.

“It’s unsustainable. We can’t continue to place that demand on our judges with this extraordinary pending caseload and have a record number of vacancies,” Grant said. “Even if you put 20 judges on tomorrow, we’ve got 22 judges leaving by the end of the year. We’re still in that same place.”

Grant said the courts could operate without overburdening its judges if the vacancies were reduced to between 25 and 30.

Bringing court vacancies to a sustainable level would require 67 judges to be nominated and confirmed this year, a monumental undertaking for a governor who has added just 62 new judges to the bench since taking office — but not an impossible one. The Senate confirmed 63 judges during the last year of Gov. Chris Christie’s term, cutting vacancies to nine at the end of 2017.

Alyana Alfaro Post, the governor’s press secretary, said Murphy’s administration is vetting dozens of judicial nominees.

“He will continue to work with the Senate through the advice and consent process to appoint qualified and capable individuals to the judiciary,” she said.

Jurists in the pipeline

The judicial confirmation process isn’t built to be swift.

To advance, nominees must win approval from their home county senators and the Judicial and Prosecutorial Appointments Committee, an arm of the state bar. They also must be vetted and submit questionnaires to the administration and Senate before being approved by the Senate Judiciary Committee and later, the full Senate. Each of those steps presents a potential hurdle.

The Senate has yet to confirm the 14 judges put up by Murphy this year. If confirmed, those nominations could fill existing vacancies in Camden, Burlington, and Morris counties. Three seats are empty in Camden County, while Morris and Burlington each have a single vacancy.

Four of the remaining nominees are to the Mercer County bench, which has seven vacancies, and three have been nominated in Essex County, which has 12 empty seats, the state’s largest number of vacancies.

The remaining nominee is up for a spot on Passaic County’s bench, where five seats are empty.

There are no nominees awaiting confirmation in Atlantic, Bergen, Cape May, Cumberland, Gloucester, Hunterdon, Middlesex, Monmouth, Ocean, Somerset, Union, or Warren counties. Vacancies in these counties range from eight in Bergen to one each in Burlington, Hunterdon, Cape May, and Cumberland. There are no vacancies in Sussex or Salem.

Nine Murphy judicial nominees have been confirmed since the legislative session started in January. Seven of them were confirmed for tenure, while the two new additions to the bench came from Middlesex County, where three seats are vacant.

Despite the rising number of openings on the bench, there is no immediate reason to make more nominations. The Senate’s only proceedings this month are budget hearings and its judiciary committee is not expected to reconvene until May.

Slow justice

Prosecutors and public defenders have voiced concerns over the effect the vacancies will have as courts resume holding trials that were placed on hold during the pandemic.

Foremost in their minds is a lingering backlog of cases created by the pandemic. That backlog has thinned some in recent months, falling from a high of 97,028 in September to 87,026 in February, the most recent month for which the judiciary has released backlog data.

That’s still nearly four times higher than the 23,917 backlogged cases the judiciary reported in March 2020. The courts mark a case as backlogged if it has not been heard within a defined period of time, which varies depending on the nature of the case.

“The impact of judicial vacancies may have been more subtle as COVID restrictions limited the number of trials that could occur in many of our courthouses,” said Burlington County Prosecutor Scott Coffina, president of the County Prosecutors Association of New Jersey. “But now that social distancing requirements have been relaxed, the criminal justice system would really benefit from more judges as more courtrooms open and the extensive backlog of cases resulting from the pandemic needs to be addressed.”

The New Jersey Office of the Public Defender agreed.

“As courts reopen, judicial vacancies will exacerbate the problem of getting these cases to trial,” said Jennifer Sellitti, the office’s spokeswoman. “The fewer judges on the bench, the fewer trials we can have.”

That poses a problem for the state’s justice system. When the state did away with cash bail in 2017, it also adopted a guarantee to a speedy trial that requires defendants jailed while awaiting trial to get their cases heard within two years.

Last week, Grant told the Assembly Budget Committee 494 criminal cases with remanded defendants are awaiting trial, including 126 where defendants have been jailed for more than three years. Another 1,250 cases have been waiting for between one and two years.

The vacancies also make it more difficult for the courts to quickly adjudicate domestic violence and family court cases, he said.

“This is not just a matter of statistical consideration – courts exist to serve society and our inability to resolve matters in a timely manner represents a threat to the well-being of the residents and businesses of our communities,” Grant said.