Plan would shift control of appellate judge appointments to governor and Senate

Some New Jersey legislators want to amend the state constitution to transfer the authority to appoint appellate judges from the Judiciary to the governor and Senate, a proposal that prompted swift, sharp rebukes Wednesday from the state’s top jurist and the state bar association.

Now, trial judges on state Superior Court are nominated by the governor and must be vetted and approved by the Senate, and the Supreme Court chief justice appoints trial judges to be elevated to the Appellate Division, which is part of Superior Court.

Under draft legislation, the state would eliminate the Appellate Division, create a separate Court of Appeals, and require appellate judges to be nominated by the governor and vetted and approved by the Senate. That plan would reduce the Chief Justice’s role to assigning trial court judges temporarily to the appeals court to fill vacancies until the governor and Senate act to appoint permanent appellate judges.

“The amendment would give the people of New Jersey, through their elected representatives the Governor and the members of the Senate, a voice in the selection of appellate judges,” a draft of the bill reads.

But Chief Justice Stuart Rabner and the New Jersey State Bar Association said Wednesday such a change would expose the Judiciary to the same politicization that created an unprecedented judicial vacancy crisis, delaying justice for thousands of New Jersey residents. The pace of Superior Court confirmations has been so glacially slow since Gov. Phil Murphy took office in 2018 that vacancies hit historic highs and forced Rabner to temporarily suspend family and civil trials in counties across the state.

The Judiciary is a co-equal branch of government, so such a change would undermine its independence, the bar association added.

Rabner had a simple message for the legislators who want to tinker with New Jersey’s long-established judicial processes — don’t fix it if it ain’t broke.

“New Jersey’s Appellate Division is widely regarded as one of the finest intermediate appellate courts in the nation. It is comprised of gifted judges who gained valuable experience at the trial court level, and who collectively address thousands of appeals every year. They serve the public well,” Rabner said. “The Constitution of 1947 shaped an effective and balanced intermediate court that has existed for three quarters of a century. To amend the Constitution in a way that would politicize the appointment process would have real consequences.”

He urged legislators to “carefully debate and evaluate the proposal and its impact on the cause of justice” before voting on any proposal to amend the constitution. Any change to the constitution would have to be approved by voters.

Because the legislation hasn’t been formally introduced yet, it’s unclear who will sponsor it. Senate President Nicholas Scutari (D-Union) did not respond to requests for comment. Murphy’s office declined to comment.

Assembly Speaker Craig Coughlin (D-Middlesex) said he would review the legislation “if and when it becomes available.”

“Any changes to the New Jersey Constitution would need to be made only after careful consideration,” Coughlin said.

One supporter of the legislation said trial judges should be vetted again before getting promoted to the appeals court.

Sen. Raj Mukherji (D-Hudson), who said he intends to sponsor the legislation, likened the plan to the federal process for appointing appellate judges, which involves presidential nominations and U.S. Senate approval “through a thorough vetting and confirmation process.” New Jersey’s system is the result of “an old-fashioned backroom deal in the 1940s,” he said.

“It’s undemocratic that a 80-year-old backscratching trade could result in one future conservative Chief unilaterally reshaping the Judiciary, with no hearings, no process, no transparency, and no backstop. And the Republicans are probably worried about the same possibility with an extremist liberal Chief. The new Court of Appeals judges, if the voters approve, would be subject to a transparent vetting and confirmation process just like all our trial court judges and Supreme Court justices,” he said.

The bar association issued a resolution Wednesday supporting the Judiciary and its independence and opposing the legislative proposal or any changes that would weaken the Judiciary’s role.

“The proposed amendment will all but guarantee that the Appellate Division will be plagued with the same judicial vacancy crisis as the Superior Court, due to inevitable political disagreement and delay, when no such crisis exists under the current constitutional structure,” the resolution reads.

The Appellate Division handles, on average, 5,000 appeals and more than 10,000 motions a year, according to the state courts. Twenty-seven jurists now serve in the division, with an additional four serving 10-week temporary assignments there. The chief justice has appointed 52 trial court judges to the Appellate Division since 2008, excluding the four now temporarily assigned there.

Judiciary officials have said Superior Court could operate sustainably with a maximum of 30 vacancies. Vacancies have averaged about 50 a month in recent months, and now stand at 40. Understaffing hit a record high in May 2022, when the bench was down 78 jurists and some courts reported years-long backlogs.