In New Jersey, nominations of judges and Senate Judiciary hearings make news. What most people don’t know, however, is that the New Jersey judicial appointment process is more about a handshake than about a law. The state of New Jersey has given America the brightest, most progressive and fair-minded state judiciary because the nomination process follows time-honored customs, and not because of legal statutes written by lawyers.
The codified laws that govern the process of naming judges are simple. The governor nominates all judges, and the appointees are vetted and approved by the State Senate. Judges are eligible for tenure after seven years in office. Once reappointed, they are able to serve until they reach the mandatory retirement age of 70.
None of the written laws create controversy worthy of newspaper coverage. It is the unwritten rules, based on custom, that generate the controversy. For instance, the practice of senatorial courtesy gives state senators the power to block appointees from their districts. Honoring this courtesy requires other senators to refuse to confirm a judicial candidate, unless the senators from the home district have first voiced their approval.
Often, the use of senatorial courtesy has nothing to do with the person who was nominated by the governor. Most times a senator uses courtesy to force the governor to deal with other unrelated issues behind closed doors. Senatorial courtesy is a tradition that forces compromise between the legislative and executive branch of government. While the use of courtesy is secret, sometimes it becomes public. When it does, the public usually focuses on the individual nominee, instead of what is happening behind the scenes.
Just recently, conflict erupted between Gov. Chris Christie and Sen. Ron Rice over Christopher Cerf’s nomination to be Commissioner of Education. Rice, a Democrat from Essex County, used senatorial courtesy to block Cerf’s confirmation. In response, Christie refused to submit nominees to fill several Superior Court vacancies in Essex County. There is little doubt that the real reason for the sparring had nothing to do with Christopher Cerf or the judicial nominees. It was all about the politics of something else and a breakdown in compromise required by the tradition of senatorial courtesy. Unfortunately, the public focuses on the background of the nominees because little ever becomes known about the real issue between the senator and the governor.
Although not required by New Jersey statute, the state’s courts are also 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 made up of three Democrats and three Republicans, with the chief justice belonging to the party of the appointing governor.
It was surprising this year when this unwritten rule also generated controversy. The Senate Judiciary Committee failed to confirm the nomination of Phillip Kwon to the state Supreme Court. Kwon registered as an independent last year after moving to New Jersey, but he had been a registered Republican for over ten years. Kwon’s political leanings were relevant because the court is currently comprised of two Democrats, two Republicans, and one Independent. Kwon was nominated to fill one of two vacancies, and Christie’s second nominee, Bruce A. Harris, is a Republican.
For more about the nomination of Philip Kwon, read “Kwon’s Failure to Withdraw Makes History.”