Time to End Bar Association Veto of Judges and Prosecutors

It is to the public’s benefit that Governor Corzine and Governor-elect Christie came to a meeting of the minds about how vacant seats on many important boards and commissions would be filled (or not, as the case may be).

As reported in the news media, part of that agreement means that several judicial and prosecutorial appointments will proceed in the waning days of the current legislative session, which technically ends at 11:59am on January 12th.

There are two judicial nominations, however, that are not proceeding, and their failure to move should be a signal for Governor-elect Christie to re-consider the time-honored (time-worn?) practice of allowing unelected, unknown members of local and state Bar Associations to “veto” otherwise qualified nominees.

The nominations of former Cumberland County Prosecutor Art Marchand and Somerset County Prosecutor Wayne Forrest for the Superior Court were supported and endorsed by the local political parties and the local State Senators.  Both have distinguished public careers, without blemish.  Forrest a career Deputy State Attorney General before serving more than 10 years as Prosecutor, Marchand also an elected County Surrogate.

Both conducted their responsibilities well, and earned much praise for the management of their offices, and the overall handling of their important public duties.

These nominations would seem to be “no-brainers,” as candidates of great experience.  The sole reason both were stalled was the black-balling by local or State Bar Association members who ran afoul of them at some point in the past.

The extraordinary role played by the Bar Associations in these appointments is generally not known by the public.  

The Bar’s role in “vetting” appointments started with Governor Richard Hughes, himself a member of the Bar.  It arose from a very legitimate desire by the Governor to improve the quality of NJ’s legal system, and the Judges and Prosecutors who are essential to it.  When the Governor had a very small, limited staff, and the NJ Senate had literally NO full-time staff with which to assist its advice and consent function, this “peer review” of potential candidates undoubtedly played an important role in ensuring the quality of nominees, because it essentially served as the only reliable mechanism for assessing candidates’ fitness.  

But the days of a backward Governor’s Office and a weak Legislature are over.  The Governor’s Counsel’s Office is stocked with very talented and experienced lawyers, the Attorney General’s Department of Law and Public Safety has thousands of Deputy Attorneys General, the State Police “4-way” background check is very thorough, and the Senate now has multiple staffs (Majority, Minority, Judiciary Committee, OLS) to assist it in reviewing nominees’ qualifications.

Forrest and Marchand are not the only victims of Bar Association mis-management and inappropriateness.  It has recently come to light that during a recent interview process a candidate was subjected to humiliating and inappropriate sexist comments.  

These abuses are to be expected from a system that is secretive and not accountable for its actions.

This Bar Association compact has out-lived its usefulness, but worse, it is a continuing invitation for mischief and unfairness.

When the Bar last year supported the re-appointment of Justice Barry Albin, President Allen Etish said:

The New Jersey State Bar Association takes great pride in the role it plays interviewing and reviewing judicial candidates. We perform a nonpartisan step in that process. We have confidentially reviewed candidates for the bench for the past 40 years, under an agreement with every governor, back to Gov. Richard J. Hughes. And for all 110 years this organization has been in existence, we have supported the notion that judges should pass judgment without fear of reprisal from the political process.

Yet it is ironic that both Marchand and Forrest did not enjoy their right to “judgment without fear of political reprisal” when that reprisal came from unknown members of the Bar who used their authority to derail otherwise competent nominees, because they may have “clashed” with them either personally or professionally in the past.

While the Compact does not provide “veto” power in the absolute literal sense, only one Judicial candidate has ever been nominated by a Governor who was pronounced unqualified by the Bar, and that was Peter Verniero for the State Supreme Court.  No other candidate has ever made it passed this vote of no confidence by the Bar.  So for all intents and purposes, it has been a “veto” which all Governors have followed.

Besides the unfairness of a secretive process controlled by private individuals, outside any kind of public accountability, there are legitimate policy reasons why a center-right Governor might want to re-think ceding such enormous appointment powers to a group which has almost always taken the most liberal political positions of the day, including during the recent debate over marriage equality.

An organization which allegedly prides itself on “non-partisanship” has no business taking stands on public policy or legislative matters that are politically controversial or that go beyond the management the state’s court system.

 

Time to End Bar Association Veto of Judges and Prosecutors