For the past few years, thousands of people in New Jersey couldn’t get a divorce, see their kids, win a restraining order or get compensated for crushing medical bills, all because there weren’t enough trial judges.
Gov. Phil Murphy failed to make sufficient nominations and lawmakers refused to confirm the new appointments, despite a catastrophic backlog of cases. It got so bad that the chief justice of our Supreme Court, Stuart Rabner, had to temporarily suspend family and civil trials in counties across the state.
All of which makes us wonder: Why is the dysfunctional Senate now trying to take on the task of filling extra judgeships, when they can’t even do their first job?
Under a proposal being floated by Senate President Nick Scutari and Sen. Raj Mukherji, the public would vote on a new amendment to the state constitution: It would take the power to choose appellate judges away from the chief justice and give it to the governor and Senate –asit already works with trial judges today. What could possibly go wrong?
Imagine slowing the work of the appeals division by 10 to 15%, the average number of vacancies we’ve seen in the trial courts at any one time due to confirmation delays. There’s no reason to think things would proceed any differently on the appellate level. We’ve not had a good history in general of appointing judges promptly, a process made even harder by an outdated quirk that allows a single senator to block a confirmation vote.
In fact, the pace of confirmations has been so maddeningly slow that we were down 78 jurists in May of 2022 – an historic high – with a years-long backlog of cases. In recent months, we’ve averaged around 50 vacancies, and it still stands at 40, when Chief Justice Rabnerhas said it should be no more than 25 or 30 to serve the public adequately.
Thankfully, political delays haven’t been a problem on the appeals courts, which handle about 15,000 cases a year, because the chief justice simply appoints the appellate judges – picking the best candidates to promote from the trial courts.
But this proposal would gum that up, too. Even if Rabner were still allowed to assign trial court judges temporarily to the appeals court to fill vacancies in a logjam, that’s no real solution. Think about it: If you find somebody to fill in for three months or so, is that the same as having a full-time, seasoned appellate judge? Is it a smart way to operate on a sensitive assignment? Of course not.
Even on the Supreme Court, where the chief justice is sometimes forced to ask appellate judges with decades of experienceto slot in temporarily because of political stalemates, there’s a learning curve. Adding temps to the appellate court can’t be the answer, either.
Critics point out that we are the only state that does it this way: Others either elect their judges or appoint them through some sort of confirmation process. An extremist governor could someday make a deal with lawmakers to appoint an extremist chief justice who stacks the appellate court without input or negotiation, they warn.
What are the odds of that happening, really? Remember, our appellate judges first serve as Superior Court judges, and so must be approved by the Legislature at that point, andagain when they seek tenureafter seven years. It’s not as if lawmakers have no input.
But the core problem is thatour Senate and governorhave been unable to handle the load they have.This would be a different discussion without that dysfunction.Yes, there could be benefits to these other systems too. But we’ve seen quite enough. We don’t need even more backlogs in the appellate courts, where the chief justice can now appoint judges who’ve already had years of experience on the bench, then bring them back down again if it doesn’t work out after a trial period.
This is a system that’s been in place for three quarters of a century, and it’s worked well in New Jersey. So why don’t we fix the problems we have now, instead of imagining a problem that doesn’t exist, and never has?
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