Trenton lawmakers move to upend the way New Jersey appellate judges are appointed

As New Jersey legislative leaders move toward limiting government transparency, they also seem poised to further consolidate their power by considering an amendment to the state constitution that would change the process for appointing appellate judges.

A bill to do so would have to pass committee and both chambers of the Legislature to put an amendment on the ballot for New Jersey voters to decide whether they want to amend the constitution.

Senate President Nicholas Scutari said legislation is being discussed that would mirror the procedure used on the federal level. The proposed bill would create a process that also duplicates the one used to appoint judges to the Superior Court: The governor nominates potential jurists, and it’s up the state Senate Judiciary Committee to send those nominees to the full state Senate for appointment.

What did legislative leaders say?

In a Wednesday phone interview, Scutari said the legislation aims "to improve the folks that we get” and to “increase the pool of opportunities for lawyers that want to be in the judiciary."

“There’s a lot of lawyers who will not take a judgeship for the Superior Court and go to family or landlord-tenant court for years and years and years, then maybe have the opportunity to go to the Appellate Division, maybe not,” Scutari said. “They would really consider a position if they were offered to go directly to the Appellate Division, as is done in the federal system.”

He said concern about a lack of bench experience is “certainly an argument that could be made, but in the federal system that’s exactly what they do,” and it may “attract higher-qualified folks to the bench if you were to give them a coveted position.”

The Senate president said this is an idea he’s been “wrestling with” and that he “hasn’t made a final decision” but there are “bipartisan talks on this.”

State Senate Minority Leader Anthony Bucco said he has “heard discussions surrounding the proposal, and like all legislation, I will thoroughly and thoughtfully review the bill once it is introduced to consider the policy implications.”

Earlier: NJ Judiciary officials say trial backlog will be reduced only by adding new judges

How did the New Jersey legal community react?

State Supreme Court Chief Justice Stuart Rabner said Wednesday that the New Jersey Appellate Division is “widely regarded as one of the finest intermediate appellate courts in the nation” and that it is “comprised of gifted judges who gained valuable experience at the trial court level” and “collectively address thousands of appeals every year."

“The constitution of 1947 shaped an effective and balanced intermediate court that has existed for three-quarters of a century,” Rabner said. “To amend the constitution in a way that would politicize the appointment process would have real consequences. Among other serious concerns, it would lead to vacancies that would in turn delay justice for countless litigants.”

He went on to call for a careful debate and to “evaluate the proposal and its impact on the cause of justice.”

The New Jersey State Bar Association said a new procedure to appoint Appellate Division judges — using the gubernatorial nomination and advice and consent of the state Senate process that is already in place for Superior Court judges — would “threaten the independence of the New Jersey Judiciary and further expose it to the political process.”

The association also adopted a resolution in support of the Judiciary and its “independence as a co-equal branch of government."

“Transferring this authority from the chief justice to the governor and Senate would inevitably insert politics into the appointment process,” the resolution says. “Additionally, it would subject the Appellate Courts to the same years-long impasse between the executive and legislative branches that led to unprecedented vacancies on the state Superior Court, a situation so extreme that family and civil trials in multiple counties were shut down for months on end, delaying justice for thousands of New Jersey residents.”

Both the state bar association and Rabner cite the likelihood of vacancies as a cause for concern with this possible change. That concern is not without reason. The judicial shortage had been steadily building in recent years, reaching a critical mass in May 2023 with 75 seats on Superior Court benches empty.

Civil and divorce trials resumed in Passaic County only last month after being suspended last year due to vacancies on the bench. Similar suspensions happened last year in Cumberland, Gloucester, Hunterdon, Somerset and Warren counties.

The bar association opposes any change to the New Jersey Constitution that threatens the Judiciary’s independence and weakens its role in serving the residents of the state.

The Legislature can also propose amendments to the New Jersey Constitution. Such an amendment must be passed by a vote of three-fifths of each chamber — 24 in the state Senate and 48 in the Assembly. No action by the governor is required. If passed, the proposed amendment is placed on the ballot in November for a public vote. An amendment may also be presented to the voters if the Legislature passes it two years in a row by a majority vote.

Katie Sobko covers the New Jersey Statehouse. Email: sobko@northjersey.com

This article originally appeared on NorthJersey.com: NJ Legislature moves to upend appointments of appellate judges