NJ faces a judicial crisis, and a certain unwritten tradition isn't helping — Stile

It was a clash over a routine governor's nomination that could easily have served as the script for a political parody.

When former labor leader Joel R. Jacobson's was nominated in the 1970s for a $60,000-a-year seat on the Casino Control Commission, a conservative Essex County lawmaker blocked him by invoking the "senatorial courtesy" tradition that allows senators to block any gubernatorial nominee who lives in a county they represent.

Jacobson, an old friend and squash partner of Gov. Brendan T. Byrne, was not to be outmaneuvered. He pulled up stakes and moved to Point Pleasant, where the home senator, John Russo, supported his nomination.

Still, Jacobson wasn't taking any chances. He told reporters during his confirmation process that he was living in a trailer, ready to move to a new county at a moment’s notice if Russo changed his mind.

That colorful anecdote from Statehouse lore makes for good storytelling in a Trenton bar after a voting session. Yet, the current "courtesy" crisis that has paralyzed the New Jersey Supreme Court — and the Judiciary in general — is hardly a laughing matter.

The fusty unwritten tradition, passed down through generations, has exacerbated one of the worst personnel crises in the modern Judiciary's history, with 59 judgeships, or almost 14%, going unfilled, some for years at a time. In Bergen County, where eight vacancies places it as the highest among the 21 counties, one seat has remained vacant for nearly four years and another has been unfilled for three years.

Some nominees have been approved over the past weeks, and the newly minted judges represent an improvement from what Chief Justice Stuart Rabner described in May as the highest level of vacancies in the history of the Judiciary.

It is a shortage that has led to real-life consequences for New Jersey residents. Personal injury cases can take years to resolve. The number of criminal defendants awaiting pretrial hearings has swelled by 36% since 2020. It can take almost five years for a divorce to be heard in a trial court, officials say.

"You have 10 of 21 counties absolutely shut down to divorce trials, another four almost almost shut down,'' said Jeralyn Lawrence, president of the New Jersey Bar Association. "You have people who not only can't get divorced, some of these couples are stuck at home together ... where kids are suffering, living through their parents' very contentious divorce."

The vacancies can be attributed to a number of factors, including pandemic-related delays in scheduling hearings and vetting of candidates; a wave of judges leaving at the mandatory retirement age of 70 and sometimes earlier; and the installation of a new Senate president, who presides over the flow of appointment confirmations.

And some Statehouse observers attribute the mess to a lack of top-priority urgency by Gov. Phil Murphy, whose summer calendar includes a vacation in Italy and an economic development mission to Israel, a must-do visit for any New Jersey governor, especially one who appears to be flirting with a run for national office. George Helmy, Murphy's chief of staff, dismissed the complaint last week, saying the governor is working on the judge crisis every day and considers filling the court a top "legacy" priority.

Related:Shorthanded Supreme Court calls up three judges as Murphy, lawmakers stall on replacements

Yet the permanent and quiet role of senatorial courtesy has also gummed up the works. Itgives senators the power to hold up or, in rare cases, permanently block a nomination without ever having to publicly explain why, although many offer some rationale for doing so.

Many lawmakers defend the tradition as a necessary check on the New Jersey governor, the most powerful in the country.

"Senatorial courtesy has a place in our body politic, because it does create a scenario where the most powerful governorship in America has to work in collaboration with members of the Legislature on how they want to shape not just courts, but appointments,'' said Sen. Troy Singleton, D-Burlington, a member of the Senate Judiciary Committee.

Historically, senators use it as a negotiating tool, a way to squeeze the governor to consider their own allies for appointments or state aid for their districts.

More:Despite pledge to chip away at judge shortage, NJ lawmakers have made little progress

One senator's objection, three Supreme Court seats unfilled

Sometimes, the mere threat of a senator's exercising the courtesy privilege forces the governor's office to enter private, sometimes lengthy discussions to secure a senator's support, or "signoff,'' before a nominee is publicly announced and formally submitted to the Senate for confirmation. In the past, Bergen senators operated under a "package deal" system in which all five senators privately iron out political and qualification hurdles before agreeing to a group of gubernatorial nominations.

"This is the way it has always worked in Bergen County,'' the late Sen. Gerald Cardinale, R-Bergen, said in 2012. Still, the system could drag nominations out for months, if not years.

It is Cardinale's successor, Sen. Holly Schepisi, R-River Vale, whose exercise of courtesy has generated the most controversy. Schepisi has refused to sign off on Rachel Wainer Apter of Englewood, Murphy's nominee to replace retired Supreme Court Justice Jaynee LaVecchia.

The block has lasted 16 months and forced Murphy to resubmit Wainer Apter's nomination for the new legislative session in January. Schepisi has said she has concerns about the former American Civil Liberties Union lawyer's ideological leanings and relative lack of judicial experience.

Still, the long delay has led to a standoff with Murphy's office, creating a domino effect on the seven-member Supreme Court. Murphy's office has refused to advance a nominee to replace former Justice Faustino J. Fernandez-Vina, a Republican who retired earlier this year, unless Schepisi signs off on Wainer Apter's nomination. That spat has cast in limbo plans to replace former Justice Barry Albin, a Democrat who retired in June.

Faced with three vacancies on the top court, Rabner took what is believed to be an unprecedented step on Monday and elevated three veteran appellate court judges to the Supreme Court as temporary replacements until permanent replacements are confirmed by the Senate. Shadowing the personnel crisis is the possibility that Wainer Apter follows Jacobson's path and moves to another part of the state where the senators are expected to support her nomination.

Schepisi noted on Monday that such a move will be unlikely and that an agreement with Murphy's office was imminent. Murphy officials declined to comment, but a source acknowledged that the talks continue.

The court controversy illustrates the undemocratic nature of courtesy, allowing just one senator to unilaterally delay or even permanently derail a nominee. To critics, it subverts the "advise and consent" balance in the constitution, which requires the Senate to approve nominees.

The constitution also created the time-honored method of giving nominees a chance to defend their record and rebut any charges made against them so that the Senate can publicly vet a nominee both at the confirmation hearing and on the floor of the Senate before giving final approval.

Senatorial courtesy, a privilege protected by tradition that lacks transparency, subverts that process.

Schepisi rejected the criticism and said she was simply "utilizing" a power to ensure that Murphy — who has the ability to reshape the Supreme Court for the next generation with the next three nominees — doesn't turn the court into a vehicle of liberal activism.

The 42-year-old Wainer Apter, who clerked for the late Ruth Bader Ginsburg at the U.S. Supreme Court, also served as the state director of civil rights. Schepisi said her goal was simply to "ensure that the integrity of the court continues regardless of control by political parties in the state."

Failed efforts at reform

Still, there have been attempts to rein in the practice over the years.

In 1983, Cardinale blocked the reappointment of Appellate Judge Sylvia Pressler. He complained that Pressler was too liberal and lacked the judicial temperament, and he accused her of being “totally and completely incompetent.”

But an incensed Chief Justice Robert N. Wilentz spoke out in her defense, arguing that Cardinale’s action threatened the independence of the judiciary.

Wilentz’s defense, backed by women’s groups and editorial writers, prompted the Senate leadership to take the rare step of stripping Cardinale’s courtesy privilege in the Pressler nomination because he had once been involved in litigation before her.

In 1993, Sen. John Dorsey, R-Morris, became embroiled in a major courtesy conflict when he refused to sign off on the reappointment of Judge Marianne Espinosa-Murphy. Dorsey also raised concerns about Espinosa-Murphy's courtroom demeanor and competence.

Despite an outcry from women's groups and pressure from Christie Whitman, then the Republican nominee for governor, Dorsey refused to budge. Espinosa-Murphy lost her job, but a voter revolt that November also ousted the veteran Dorsey from the Legislature. After the election, Senate President Donald T. DiFrancesco moved to bar the use of courtesy for judicial reappointments.

Other suggestions to abolish or limit courtesy have fallen flat. In his 1993 campaign against Whitman, Gov. Jim Florio called for a constitutional amendment banning the practice. Others have floated the idea of limiting a block to 60 days and requiring senators to publicly explain reasons for their opposition.

But those ideas have gone nowhere. And they are unlikely to succeed in the current Senate.

"That’s something that’s ingrained in this house,'' Senate President Nicholas Scutari said last week. "It gives a great amount of input by senators and it’s actually worked very well. ... To fiddle around with things that have worked for decades is probably not something I’m going to do.”

Lawrence, of the Bar Association, declined to debate the courtesy practice. She's more concerned with filling the seats than exploring the reason behind the vacancies.

"We don't really care anymore whose fault it is,'' she said. "Just figure it out. I mean, what what can be taking so long?"

This article originally appeared on NorthJersey.com: NJ judge shortage: Senatorial courtesy not helping courts