Scutari proposes NJ appellate judge appointment change. What it does and its reception

New Jersey state Senate President NIcholas Scutari made waves when he said he was “considering” legislation that would amend the state's constitution to change the way appellate court judges are appointed.

A bill to do so would have to pass both chambers of the Legislature before New Jersey voters could consider a ballot measure to amend the state constitution.

The legislation would change the process for appointing judges to the Appellate Division by eliminating the division and creating a new and separate Court of Appeals, which would require judges to be nominated by the governor and by the state Senate. The proposed process would mirror the one currently in use for Superior Court judges.

Currently, the state Supreme Court chief justice appoints trial judges to the Appellate Division after they’ve spent time on the bench in Superior Court.

Senators offer mix of reactions

Members of the state Senate Judiciary Committee aren’t voting on the bill at this point, but they would be among the first to consider it.

State Sen. Brian Stack, who chairs the committee and also serves as the mayor of Union City, said Thursday that he was undecided on the possible legislation but is “open-minded,” before noting that the state has a “tremendous Supreme Court and chief justice.”

He’s also “not sure” if this legislation will appear before his committee in advance of the Legislature’s summer recess.

Stack's colleague state Sen. Jon Bramnick, who is running to be the 2025 Republican gubernatorial candidate, thinks there should be discussions between the Senate president and the chief justice before any legislation is considered.

“There’s not enough communication,” Bramnick said. “I think the chief justice should come in for a hearing before we take any steps.”

He noted that the Legislature is regularly in discussions with the executive branch — the governor’s office — and that there should be communication with the judicial branch of government as well.

State Sen. Troy Singleton hasn’t seen the bill yet but said it seems like a “solution looking for a problem.”

“We have a really good judiciary system,” he said. “It is held up as a model for other states.”

The bill hasn’t been seen by state Sen. Kristin Corrado, who said she is going to wait until she gets it to decide what to do but does think the “system works now.”

State Sen. Joseph Lagana called it an “interesting proposal” and said he would give it “due consideration” because it’s a “discussion that should be had” but noted that ultimately it is up to the voters.

Although some members were not inclined to make a decision at this point, state Sen. Michael Testa said his stance is that this should not be up to the Senate, which he said is unique because he’s “usually in favor of giving the Senate more power,” but that he believes in an “old-school Senate.”

Testa said he feels the judiciary is one area in which New Jersey is better than the federal model and that appellate court judges tend to be deliberative in hearing matters about a variety of areas of law.

He also said this would be a “massive amendment” to consider in a “short time” and noted that former Senate President Steve Sweeney and former Gov. Chris Christie worked to bring a balance of judges from both parties, which he appreciates.

“I’m always looking to improve, but this is one area I think that we should practice temperance,” Testa said.

More: Trenton lawmakers move to change the way New Jersey appellate judges are appointed

What are the specifics of Scutari's proposal?

Scutari said legislation being discussed would mirror the procedure used on the federal level and 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.

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," Scutari said.

"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," he 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."

Much as Bramnick suggested, state Supreme Court Chief Justice Stuart Rabner called for careful debate and to "evaluate the proposal and its impact on the cause of justice."

Rabner said in a statement 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."

The likelihood of vacancies was a cause for concern for Rabner with this possible change, and 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 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 appellate court judge appointment bill would amend constitution