Most of the political controversy that surfaces in New Jersey’s judicial appointment process involves those aspects of it that are not codified in law. While the use of Senatorial courtesy is political in a partisan way, the New Jersey State Bar Association (NJSBA) brings non-partisan politics to the approval process of New Jersey judicial nominees.
The unique role of the state bar association can be traced back to the early 1950s, when it informally advised governors regarding judicial nominees. However, the NJSBA’s involvement in the New Jersey judicial nomination process was not formalized until much later.
On Sept. 25, 1969, Governor Richard Hughes signed a historic resolution with the state bar association authorizing the Judicial and Prosecutorial Appointments Committee to confidentially interview and report on the qualifications of both judicial and prosecutorial nominees. The agreement is commonly known as the Hughes Compact and is designed to promote a fair, impartial and independent judiciary by adding a non-political voice to the judicial appointment process.
Today, the Judicial and Prosecutorial Appointments Committee is comprised of 26 lawyers from every county in the state. The vetting process includes interviewing judicial and personal references, speaking with lawyers from the candidate’s home county, and reviewing a list of matters handled by the appointee.
As detailed in a recent guest blog post by Susan A. Feeney, president of the New Jersey State Bar Association, the committee has a criteria she says they use to evaluate a candidate’s qualifications. The devil, of course, is in how fairly and uniformly the criterion is applied. For example, sometimes we hear about a judicial candidate’s lack of jury trial experience, which is not mentioned on Susan Feeney’s list or stated as a “deal killer” by the Bar Association.
Decisions by committee are never perfect because the dynamic of any good committee requires compromise. As good and as high minded as the 26 lawyers on the Bar Association’s Judicial Appointments Committee may be, people seldom leave their own preconceptions and their own agendas at the front door of the committee room. This can create a degree of arbitrariness and sometimes an unfairness including leaks of information from individual members that lead to public controversy.
Every New Jersey governor since Gov. Hughes has reaffirmed the Hughes Compact, including Gov. Christopher Christie who signed it on April 14, 2010. However, while New Jersey governors have routinely upheld the tradition, many have done so begrudgingly. When Gov. Christine Whitman was in office, she halted the process altogether after the bar association rejected her nomination of Peter G. Verniero, the State Attorney General. After the NJSBA concluded that Verniero was unqualified for the job, she said she would no longer involve the association in evaluating nominees, citing concerns about the confidentiality of the proceedings. Verniero was later confirmed by Senate, without the blessing of the bar association.
More recently, Gov. Chris Christie said that he would move forward with his Supreme Court nominations, even if they were not approved by the bar association. The issue, however, became moot when the NJSBA approved both of his nominations.
If you want to read more on judicial vacancies, please see Justice May Not Be Denied, But It Will Be Delayed and other articles on www.GovernmentAndLaw.com.