N.J. chief justice again urges against giving Senate power to name appellate judges

Chief Justice Stuart Rabner said the selection process for the Appellate Division works well and “there does not appear to be a problem that needs fixing.” (Courtesy of the New Jersey State Bar Association/Amanda Brown)

New Jersey Supreme Court Chief Justice Stuart Rabner on Friday again urged against a nascent proposal to amend New Jersey’s constitution to remove his authority to directly appoint appellate judges from the Superior Court bench and give that power to the governor and Senate.

In remarks delivered at the State Bar Association’s annual conference, Rabner warned the plan could leave appeals courts short-staffed and lacking the expertise needed to check the work of trial court judges.

“The Appellate Division and the selection process both work well. There does not appear to be a problem that needs fixing, let alone a problem so serious that it requires us to ask the citizens of New Jersey to amend the State Constitution,” Rabner said in the address.

Any such move would need to be approved by the Legislature and voters, and is also opposed by the bar association.

The proposal follows years of crushing judicial vacancies that grew severe enough to pause civil and divorce trials in seven counties. Those trials have since resumed, most recently in Passaic County.

Sen. Raj Mukherji (D-Hudson), the proposal’s chief sponsor, praised the chief justice’s choices on court staffing but said he worries a future chief justice would be less even-handed.

“He has indeed done a laudable job in selecting highly qualified and talented Appellate Division judges,” the senator said. “The concern remains that we’re the only state in the union where such breathtaking power is entrusted to one person, so what happens if it’s the wrong person?”

In New Jersey, the chief justice holds a specific seat on the Supreme Court, and the state’s top judge is directly appointed into the position rather than elected by their peers.

New Jersey’s process for appointing appellate judges is indeed unique among the states. While governors in four other states appoint at least some judges, subject to the approval of another body — in New Jersey, the state Senate — no others allow their high court’s chief justice to unilaterally appoint the members of its appeals court.

The chief’s direct appointment powers have insulated the Appellate Division from the vacancies that have plagued the trial courts, and Rabner in his address said he consults with high-ranking judges in intermediate and trial courts before elevating jurists to a 10-week trial on the appellate bench.

Mukherji said temporary appointment powers similar to those the chief justice exercises on Supreme Court vacancies could prevent an empty bench.

“Chief justice raises good points about the logjam potential, although you could solve for that by affording him the right to temporarily fill vacancies from the Superior Court,” he said.

Mukherji signaled that any changes to how New Jersey’s appeals judges are appointed wouldn’t come quickly.

“I do agree with his remark that the constitution should not be amended lightly, but rather after careful discussion and deliberation,” he said. “I’m glad that a discussion is taking place. That doesn’t mean this is or should be moving tomorrow.”

North Dakota is the only other state where the Supreme Court selects non-interim appeals judges, though in that state, the choice falls to the entire three-member high court.

Only two states — California and Kansas — allow governors to nominate appeals judges subject only to the advice and consent of another body, and Kansas is the only state that leaves appellate confirmations to the state Senate.

California’s confirmations are handled by a state judicial appointments commission, which is staffed by the chief justice of the California Supreme Court, the most senior state appellate judge, and the state attorney general.

Assisted appointment — where governors select judicial nominees from a list prepared by an outside body, most often a nonpartisan commission — is the most common method of appointing appellate judges. Nineteen states use it, some alongside an advice and consent component.

Twelve states elect appellate judges in nonpartisan elections, while eight hold partisan races to fill their intermediate courts. Some states require judges to run new campaigns for additional terms, while others only require they participate in yes-or-no retention elections.

Six states do not have an intermediate appeals court — appeals in these states usually go directly to the state’s high court, with some exceptions — and Virginia’s appellate judges are elected by both chambers of the state’s Legislature.

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