Taking Politics Out of the NJ Judicial Nomination Process

While Gov. Chris Christie may have broken with tradition (twice) by failing to nominate state Supreme Court justices for tenure, there is no evidence that his actions were “political” or that there is any impact on the strong independent judiciary in New Jersey.

The State Bar Association President jumped to conclusions last week in his criticism of the Governor on this issue and while doing so made a misstep about history as well. His claim, referring to the intention of the framers of the 1947 NJ constitution, was not entirely accurate.

While many may not like it when the Governor does not automatically reappoint a judge or have proper dialog with the Senate BEFORE he makes a nomination, it is the Governor’s constitutional right to do so.  New Jersey’s judges are the best and the brightest in the nation. Many of NJ’s judges are scholars, and they’re all outstanding lawyers. Consequently, if they were to leave the bench, they could easily get a job making much more than their judicial salaries. The thought that a Governor, who serves for 8 years at most, could affect the independence of any NJ judge is actually quite insulting to them.

The framers of the 1947 NJ Constitution used the U.S. Constitution as their model in many areas. However, in New Jersey, the 1947 framers chose against life tenure for State Supreme Court justices. Instead, they created an option to revisit a nominee after the first seven years of service before confirming a lifetime appointment. This provided a mechanism to remove judges who may not warrant life tenure or to allow the Governor and the Senate to re-adjust the balance of the Supreme Court if they chose to do so.   Once reappointed, NJ justices serve until they reach the mandatory retirement age of 70 or resign.

Although not required by New Jersey public law, the state’s courts are politically balanced. Governors of both parties have generally followed the tradition of replacing outgoing judges with someone of the same party or political ideology, i.e. liberal or conservative. The New Jersey Supreme Court is traditionally comprised of three Democrats and three Republicans, with the chief justice belonging to the party of the appointing governor.  This has worked well for New Jersey and each branch of government must assure that this balance is maintained.

The judicial nomination process has admittedly not run smoothly under Gov. Chris Christie, starting with his decision not to reappoint sitting Justice John E. Wallace, Jr. in 2010. Since then, the court has been without the full complement of seven justices. Prior to Gov. Christie’s decision to not nominate Justice Helen Hoens for tenure, the Senate Judiciary Committee failed to confirm the nomination of Phillip Kwon and Bruce A. Harris.

While a criticism of the Governor based on “politics” and “history” is extreme, the Governor should certainly communicate better with the Democrats on the Senate Judiciary Committee with respect to his nominees. While there may be no damage with respect to judicial independence as a whole, these actions bring about consequences. There is both personal damage as well as public relations issues for those individuals the governor does not reappoint, and to those great lawyers he nominates who do not get confirmed by the Senate Judiciary Committee.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Taking Politics Out of the NJ Judicial Nomination Process