By Robert F. Williams
Senate President Nick Scutari recently announced a fast-tracked proposal to remake, by constitutional amendment, New Jersey’s intermediate court, which is known as the Appellate Division of the Superior Court.
When our state constitution was last revised in 1947, it contained a judicial article that completely reformed our court system, which had been regarded among the worst in the country. In addition to creating a proper Supreme Court for the first time, it created a statewide Superior Court with both trial and appellate jurisdiction. The judges are not elected, but rather are nominated for this court by the Governor and -- if confirmed by the Senate -- join the court as trial judges.
Then, in a unique innovation, the Chief Justice of the Supreme Court, who is the administrative head of the entire judiciary, can elevate trial judges on merit who have demonstrated aptitude for appeals to serve on the Appellate Division.
This system has worked well for 75 years, and the New Jersey judiciary is highly regarded around the country.
Scutari’s proposal, however, would politicize the process, and would not serve the cause of justice.
Judges advanced by Chief Justice Stuart Rabner already have been vetted by the Governor and Senate, so they do not have to go through another political nomination and confirmation process. This way, all appellate judges below the Supreme Court have experience conducting trials in at least some of the civil, criminal, family and juvenile areas that will reach the appellate panels.
If they don’t like appellate work, or their work is unsatisfactory, the Chief Justice can return them to the trial bench. The system works.
The proposed amendment, however, would throw out this well-functioning system for the Appellate Division.
In its place would be a separate appellate court with judges nominated by the Governor and confirmed (or not) by the Senate.
It’s a bad idea. It would introduce, as the New Jersey State Bar Association points out, a political process for the selection of appellate judges -- with all of the party and intra-party wrangling, delays, senatorial courtesy (a senator from the nominee’s county can hold up the confirmation process) and judicial vacancies that result.
New Jersey citizens have suffered through bouts of judicial vacancies at all levels of the court system, most often caused by political squabbles. Many were denied timely access to judicial resolutions to which they were entitled. After all, it is for the people of New Jersey that the courts have been created to resolve their disputes.
Yet under the system that the Legislature is proposing, judges would be chosen through political patronage rather than on merit and demonstrated performance.
Anybody who has watched the political circus that has developed in Washington around the nomination and confirmation of federal judges -- including the Supreme Court -- should be very wary of introducing that system into our intermediate appellate court.
It should be thoroughly discussed and then rejected. But if it makes it to the ballot, voters need to recognize it for the legislative power grab that it is.
Robert Williams is a Distinguished Professor of Law Emeritus at Rutgers Law School in Camden.
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