Judicial Selection Report - May 2001
A REPORT OF THE NEW JERSEY STATE BAR ASSOCIATION
Table of Contents
NJSBA Board of Trustees
Judicial Administration Committee
Findings Of The NJSBA
Overview of the Process
Problems with Existing Practice
The Appointment Process
The Selection Process
A Proposal For Reform
Appendix: A Brief Chronological NJSBA History
Barry D. Epstein, President
Christine V. Bator
Patricia A. Meyer, Co-Chair
Heidi Solomon Allen
Holly C. Bakke
The Issue. Judicial selection in New Jersey should be but is not geared toward timely appointment of the most highly qualified individuals to the bench. The process requires improvement.
The Problem. The selection process is subject to the practice of senatorial courtesy. The practice has grown out of the Senate's constitutional prerogative of advice and consent, and allows each senator unfettered discretion to block judicial nominations and renominations arising in his or her constituency. The practice is not constrained by any constitutionally mandated criteria for timely, merit-based review of candidates or nominees, and has been frequently criticized for these reasons by jurists, scholars, the bar and the media. These shortcomings are compounded by the general absence of formal procedures at the local or state level to identify and screen qualified candidates in the early stages of the selection process.
Recommendations. A divided New Jersey Supreme Court has considered senatorial courtesy a "nonjusticiable political question." DeVesa v. Dorsey, 134 N.J. 420, 429 (1993). Short of a constitutional challenge or amendment, the NJSBA recommends that the bar: articulate a clear policy that the Senate must exercise its prerogatives responsibly; educate the bar and the public regarding the exercise of those prerogatives; and promote establishment of procedures at the county level to work with senators to identify and screen judicial candidates.
New Jersey State Bar President Barry Epstein asked the Judicial Administration Committee to review the process of selection of judges in the State and to make recommendations to improve the process. The following is an excerpt from his charge to the Committee:
I've called upon [the Judicial Administration Committee] to look into the judicial selection and appointment process, including the controversial topic of Senatorial Courtesy.
For the purposes of this report, "selection" is treated as the identification of nominees, and "appointment" as the review and approval of nominees. The following sets forth the NJSBA's review of and recommendations regarding these processes.
The process of selection and appointment is strongly subject to the influences of individual political officials. This results from the constitutional powers of the governor and the senate over judicial appointments, the derivative practice of senatorial courtesy, and the absence of formal procedures for merit-based review of candidates in the early stages of the selection process.
The bar may wish to litigate the constitutionality of senatorial courtesy. To date, however, the New Jersey Supreme Court has been unwilling to exercise jurisdiction over the issue. DeVesa v. Dorsey, 134 N.J. 429, 443 (1993). Regardless, the bar should recommend regular merit-based review of judicial candidates to reform current practices.
Findings of the NJSBA
A brief review of the process of judicial selection and appointment is helpful in understanding the NJSBA's recommendations for reform. The NJSBA relied on the experience and investigation of its members, information prepared by staff counsel, and other available written materials.1 Investigation included interviews with bar members active in the judicial appointment process at the state and county levels.
Barring amendment, reform of the judicial selection process must occur within the constitutional framework for selection and appointment of judges. The New Jersey Constitution gives the Governor the power to appoint judges, and the Senate the power of advice and consent. N.J. Constitution, Art. 6, Sec. 6, Para. 1. As a corollary to the power of advice and consent, senators exercise senatorial courtesy, a practice allowing each senator the ability to block any nomination arising in his or her county. The practice in New Jersey mirrors the practice at the federal level but is unlike that in place in any other state.
Senatorial courtesy ensures that senators largely control the identification of candidates for the bench. Even if the Governor does not rely outright on the senators to identify candidates for particular appointments, the practice of senatorial courtesy ensures that the Governor typically seeks the approval of the senators in question well in advance of making a formal nomination. Further, there is no formal procedure for the identification or screening of candidates in the selection process. In other words, the process for selecting candidates for the bench is ad hoc, and largely the province of the state senators.
The appointment process is subject to a greater degree of formality. Pursuant to the compact reached between Governor Hughes and the State Bar in 1969, the Governor submits nominations to the bar for review of qualifications. The terms of the compact are included in the Appendix. Bar involvement in the process is regularized, as set forth below. Nominees are scrutinized according to a set of well-established criteria. Merit review is essential not only following nomination but also throughout the process. Establishing such review earlier in the process will not only improve the process generally but also will increase the confidence of the public and the bar in the judiciary.
Problems with Existing Practice
In General: The judiciary in New Jersey is one of the best in the nation. However, the process of selecting judges in this State can be improved. Senatorial courtesy is a practice suited to serving the objectives of individual senators. Those objectives may or may not include appointment of the most qualified candidates for the bench. Indeed, senators have exercised courtesy to block noncontroversial appointments in order to secure more controversial appointments. Recent experiences in Essex and Passaic Counties demonstrate the potential for abuse. In short, the process is strongly subject to political expedients other than or, at the least, in addition to appointment of qualified candidates.
Further, there is virtually no formal merit review in the early stages of the selection process. The process requires more formal and regular review of the qualifications of candidates from an early stage. Such review must be based on objective criteria such as those applied by the State Bar's Judicial and Prosecutorial Appointments Committee. Further, such review should include the participation of the bar and the public. The adoption of such practices will both improve and generate greater public confidence in the process.2
However, even if senatorial courtesy were to disappear, the senate's prerogative of advice and consent will not. Therefore, whether formally or informally, the senators will continue to play a central role in judicial selection. As described below, three senators have instituted practices which the bar should build upon. In particular, the practices instituted and formalized in Morris County provide a useful model for balancing greater bar and public involvement with the continued influence of individual senators. The state bar should recommend and promote the adoption of such practices at the county level throughout the state.
The Appointment Process: Formal review of the appointment process, and the bar's role in that process, is well defined. Pursuant to the Hughes Compact, the Governor submits nominees to the State Bar Judicial and Prosecutorial Appointments Committee3. The JPAC finds a nominee qualified or not qualified, and submits that finding to the Governor. The Governor then sends the nomination to the Senate Judiciary Committee. Following its review, the Judiciary Committee releases the nominee for consideration by the Senate as a whole.
In practice, the JPAC refers nominees to the county from which the appointment arises4. The counties have standing committees for this purpose, consisting of members of the county bar association. The county committees meet to review qualifications set forth by the candidate in the standard questionnaire prepared for the governor's review. The county committees also typically interview the candidate.
The county committees send their recommendations to the JPAC, consisting of members of the state bar. The statewide committee reviews the qualifications of nominees based on a set of written, objective criteria. The state committee also interviews the nominee, and renders and submits its findings to the Governor.
The NJSBA believes that bar involvement in the appointment process can be strengthened. Most obviously, the Hughes Compact must be reaffirmed with the acting and incoming Governor(s) with respect to appointments to the Supreme Court. Further, the bar should solicit lay participation in appointment review committees. Nevertheless, the NJSBA finds that there are clearly defined processes for bar input into the appointment process, and those processes are regularly used throughout the state.
The Selection Process: Of far greater concern to the NJSBA is the almost complete absence of formal review of candidates in the selection process, and the virtual absence of regular bar input into that process. In short, bar involvement in the identification and screening of candidates is, with the few exceptions discussed below, irregular and inconsistent.
The bar appears to have no regular input into the selection process at the state level. At the time of the Hughes Compact, a statewide selection committee was established to review qualifications of candidates prior to nomination. However, this committee no longer functions. Further, no other committee now serves this function, and the state bar appears to have no policy reinforcing the original idea.
Thus, at the state level, there is no continuous mechanism for bar involvement in the selection process. During the Florio Administration, a large number of vacancies existed following the enactment of legislation creating 36 judgeships. Governor Florio did reach out at that time to the state bar for the names of potential candidates. However, this outreach was not formalized and did not survive the filling of the particular vacancies.
The situation is little better at the county level. The NJSBA canvassed a number of bar leaders at the county level regarding judicial selection. By and large, the county bar associations have no formal mechanisms to participate in the selection process. Further, the state bar does not appear to have any formal policy regarding bar involvement at the county level.
However, the NJSBA did find significant counterexamples in three counties. In Morris County, Senator Robert Martin initiated and signed a written compact with the county bar association in 1994. The compact created a standing committee to identify and prequalify candidates for the judiciary. As modified in 1996, the compact includes 11 members. Senators signing the compact appoint five members; the county bar, five. These ten members then select the final member who chairs the committee. The compact specifies that any signatory senators (there have been two - former Senator McGinnis as well as Senator Martin) will submit only those candidates found highly qualified by the committee.
In Warren County, Senator William Schluter relies on the county bar association to identify and screen potential candidates. The Senator notifies the county bar president whenever a vacancy arises out of Warren County. The president then convenes a committee comprising bar members representing both a range of practices, including the offices of the prosecutor and public defender, and geographical locations within the county. The committee identifies and interviews prospective candidates, and then meets with Senator Schluter. Senator Schluter agrees not to support any candidate not found qualified by the committee. The process is less formal than in Morris - there is no standing selection committee and the practice has not been reduced to writing.
In Atlantic County, Senator Gormley regularly consults with the county bar organization regarding the identity and qualifications of potential candidates for the judiciary. It is Senator Gormley's practice to recommend those candidates who have been found qualified by the county bar association. As in Warren County, this practice has not been reduced to writing.
The bar's involvement in Morris, Warren and Atlantic Counties is encouraging. However, it is important to note that this involvement has been initiated by the senators in those counties. Such practices must be formalized if they are to survive the tenures of the particular senators and be extended to other counties.
A Proposal for Reform
Any reform must acknowledge the constitutional delegation of authority over the judicial selection process to the governor and senate. Even setting senatorial courtesy to one side, this centralization of authority in the executive and legislative branches probably precludes implementation of a mandatory statewide merit selection system of the sort first instituted in Missouri and now in place in many other states. Any such statewide process would require significant concessions from both the governor and the senate, an unlikely event.
However, procedures can be recommended at the state and/or county level. At the state level, the bar can recommend extension or modification of the Hughes Compact to provide statewide review of judicial candidates in the early stages of the selection process, as typically practiced in merit review systems. In other words, the governor might be persuaded to consider only those candidates who have been prescreened and found qualified by an independent review board.5
Further, the bar can recommend selection procedures at the county level in cooperation with individual senators. This is the type of process that appears to be working in Morris, Warren and Atlantic Counties. Specifically, the NJSBA endorses the system developed pursuant to the Morris Compact. The Office of Governor's Counsel recently indicated it will respect reasonable practices of senators regarding the prescreening of judicial candidates.
The Morris Compact can and should act as a model for participation in the selection process at the county level. Implementation can be tailored to meet particular situations. For example, the recommendations of the county selection committee can be made advisory and not mandatory, as is the case with the Hughes Compact. Further, the county committees could be established on a standing or "as needed" basis, depending on local requirements.
The NJSBA would favor leaving many of the specifics of implementation to the county bar organizations. However, the NJSBA recommends that the proposed committees include representatives of the lay public. Public participation will increase public confidence in the selection process, as well as awareness of issues surrounding the exercise of senatorial courtesy. Precedent for public participation exists both through the Morris Compact and the composition of the district ethics committees. As to the latter, see Rule 1:20-3(a) of the Rules of Court.
Further, members should be diverse at least with regard to political affiliation, gender, and ethnic background. Lawyer members should also be diverse as to size, focus and geographic location of their practice. Lawyer members also should be recruited not only from county bar organizations, but also minority and specialty bar organizations at the state and county levels. Similar factors should be considered with respect to the occupational backgrounds of nonlawyers.
The state bar should clearly adopt as a long-term goal the creation of selection committees at the county level along the lines outlined in the Morris Compact. The state bar should press for the creation of such committees even in counties where senators are opposed to the idea. The existence of such committees will raise awareness of the need to reform the judicial selection process. If pursued, those reforms will come. This Judicial Administration Committee remains willing and available to assist the State and county bar organizations in implementing the recommendations outlined in this report.
The New Jersey State Bar Association should endorse greater bar and public participation in the identification and selection of candidates for the judiciary. Such participation should occur at the county level through the several county bar associations and with the cooperation of the state senators. The Morris Compact is a model for such participation. The State Bar Association should develop support for greater participation at the county level. Further, both the state and county bar organizations should canvas senators at the local level, the Senate as a whole, and the Office of Governor's Counsel to support such reform.
A Brief Chronological NJSBA History
- The first formal Committee on Judicial Appointments appeared in the 1930-31 Annual Yearbook of the State Bar Association. At that time, there were three members. The Chair was Robert H. McCarter, followed by Edward L. Katzenbach of Trenton and William J. Kraft of Camden. In February, 1936 there was a substantial revision of the State Bar's bylaws. Several new committees were added. The Committee on Judicial Appointments was charged with keeping "itself informed of proposed appointments to State Judicial positions, and acquaint[ing] the Governor and Senate of the State with its judgments of the qualifications and fitness of candidates".
- In 1938, the Chair of the State Bar Judicial Appointments Committee issued a report in which he indicated the difficult time the Committee was having given that it did not have any authority to act with regard to the Executive and Legislative Branches of government. However, in his report, he noted that the Governor suggested a process whereby all judicial appointments would be held in abeyance pending a report from the Judiciary Committee of the State or local Bar Association depending upon the position to be filled. The Board of Trustees resolved that the Committee use its powers of persuasion to the fullest extent possible to achieve greater involvement of the State Bar committee in the judicial appointment process particularly noting that as a lawyer the Governor is sensitive to the benefits the bar can provide.
- In 1960, the State Bar appointed a Special Committee to investigate the delay in judicial appointments that was occurring in the State Senate. This practice later became known as exercising senatorial courtesy and has plagued the State of New Jersey and its citizens since this time.
- In 1965, the State Bar entertained a resolution which called for the creation of a "Judicial Selection Committee" to address the problems caused by the practice of senatorial courtesy. This practice resulted in candidates for judicial office being held hostage by State Senators not on the basis of their qualifications, but on the basis of politics. The Board passed a resolution calling for a Special Committee to study this issue and instruct officers to meet with senatorial candidates prior to the November election in order to secure their commitment to consult with the State Bar and also provide the Association with an opportunity to interview potential candidates.
- As early as 1967, Governor Richard J. Hughes began submitting names to the NJSBA Judicial Appointments Committee for a hearing on candidate qualifications. This was before a formal compact was adopted in 1969.
- In 1968, the State Bar adopted a resolution calling for an amendment to the State Constitution requiring that the State Senate act on the Governor's judicial nominations within a specified period of time after they were announced. If the Senate failed to act, the nominee would automatically be confirmed without the advice and consent of the Senate.
- In September, 1969, it was reported that Governor Hughes had approved the State Bar's proposed procedures for the selection and appointment of judges to all of the State's courts. The next mission was to receive the endorsement of this proposal from the two candidates for Governor. Securing this guarantee would help to entrench the practice as a permanent policy in New Jersey. This was the beginning of a compact with the Executive Branch which has lasted for more than 30 years.
- In 1970, the State Bar passed a detailed resolution criticizing the practice of senatorial courtesy and urging the adoption of a constitutional amendment under Article IX of the Constitution which would be designed to require that all judicial appointments be voted on within a reasonable period of time by the Senate as a whole to end the abuses of the practice. The resolution follows:
RESOLUTION LIMITING TIME FOR SENATE TO ACT ON JUDICIAL APPOINTMENTS
WHEREAS, Under Article VI, Section VI, paragraph 1 of the Constitution of New Jersey, the following provision is made for the appointment of Justices of the Supreme Court and judges of other courts:
The Governor shall nominate and appoint with the advice and consent of the Senate, the Chief Justice and Associate Justices of the Supreme Court, the Judges of the Superior Court, the Judges of the County Courts and the judges of the inferior courts with jurisdiction extending to more than one municipality. No nomination to such an office shall be sent to the Senate for confirmation until after seven days public notice by the Governor.
WHEREAS, there is in existence an unwritten rule or understanding known as "Senatorial Courtesy." In operation, this rule permits a Senator from a given county to block an appointment for judicial office in his county merely by expressing his personal opposition; and
WHEREAS, the operation of this rule or understanding has the effect of conferring upon each Senator a power not given him by the Constitution, a power which is tantamount to a right of veto as to a judicial appointment in the Senator's county even though all other Senators would, on serious consideration, have confirmed an appointment; and
WHEREAS, a direct result of the operation of this rule or understanding is to deter competent and honorable men from accepting judicial appointments because they may not meet the personal approval of the Senator from his county and, thus, judicial appointments are traded as a part of the interplay of political accommodations; and
WHEREAS, there is an ever increasing need for good judicial appointments at every level, appointments to be selected from the best qualified men available and the operation of this rule or understanding of "Senatorial Courtesy" operates directly against the making of such selections in accordance with the Constitution.
NOW, THEREFORE, BE IT RESOLVED that this Association go on record with both Houses of the Legislature in favor of the offering of a constitutional amendment under Article IX of the Constitution, an amendment to be designed to require all judicial appointments to be voted on within a specified period of time by the Senate as a whole to the end purpose and intent that the situation presently obtaining be terminated.
- In 1983, State Bar President Vincent Apruzzese and Judicial and Prosecutorial Appointments Committee Chair James Pitney testified in support of the renomination of Judge Sylvia Pressler to the Superior Court of New Jersey. Their action was precipitated by the Board of Trustees vote against the use of senatorial courtesy which was revoked so the nomination could proceed.
- In 1984, the NJSBA announced yet another attempt to expand its role in judicial appointments. Not only would the bar's involvement in reviewing the qualifications of candidates be continued, but also the bar will be asked to recommend candidates through a separate committee.
- In 1986, a special committee of the NJSBA designed a manual to provide more objectivity and uniformity to the method of evaluating judicial and prosecutorial candidates. This manual formalizes the NJSBA's judicial and prosecutorial review process.
- Also that year, NJSBA President Raymond Trombadore testified in support of the reappointment of Chief Justice Robert N. Wilentz to the Supreme Court of New Jersey. Ordinarily, the Governor Thomas Kean/NJSBA compact rules prohibited disclosure of the Judicial and Prosecutorial Appointments Committee report. However, the Governor stated that those rules would be relaxed in this limited instance. Trombadore stated that the Committee determined that Chief Justice Wilentz's performance over the past seven years had been a significant factor in the State of New Jersey's judiciary maintaining its reputation as one of the finest in the nation.
- In 1993, In June, the NJSBA was confronted with Senator John Dorsey's (R-Morris) decision to exercise senatorial courtesy on the reappointment of Judge Marianne Espinosa Murphy, blocking review by the Senate Judiciary Committee. While NJSBA did not traditionally endorse the reappointment of an individual, the Board opposed the use of senatorial courtesy in this instance because it interfered with the independence of the Judiciary and the authority of the Governor to have his nominees considered before the State Legislature for advise and consent pursuant to the State Constitution.
- In 1999, the NJSBA's thirty year old compact with the Executive Branch on judicial appointments came under intense scrutiny in February when Justice Stewart G. Pollock announced his retirement from the Supreme Court of New Jersey effective September 1st. Governor Whitman, following her past practice, quickly nominated Attorney General Peter G. Verniero as Pollack's successor. As with previous nominations, the Governor's Office submitted General Verniero's nomination to the NJSBA Judicial and Prosecutorial Appointments Committee for action. The JPAC allegedly met in March and committee discussions were supposedly made public through an unnamed source. The Governor accused the JPAC of leaking the information. At a subsequent meeting of JPAC, a decision was rendered and supposedly leaked again to the press by some unknown party. As is common practice, when the JPAC finds a candidate "not qualified", the committee chair is afforded an opportunity to present their case and participate in a question and answer session with the Senate Judiciary Committee. After the presentation, the Senate Judiciary Committee voted to release the nomination which was also confirmed in the State Senate.
- In the wake of these deliberations, the Governor announced that she was seriously considering a modification to the compact with the NJSBA. While the JPAC's evaluation was essential for Superior Court judges, the Governor questioned the value for Supreme Court nominees whom she is much more familiar with. As a result, she no longer referred nominations to the JPAC, but rather allowed candidates to appear of their own accord. This situation played out most recently with the nominations of Judge Virginia Long (to replace Justice Alan J. Handler), Jaynee LaVecchia (to replace Marie L. Garibaldi), and James Zazzali (to replace Daniel J. O'Hern). Whether Acting Governor DiFranceso or future governors will continue this practice is uncertain.
1 These include materials published by the American Judicature Society regarding the practices of judicial selection in all fifty states, and a draft article by New Jersey Senator Robert Martin of Morris County on the practice of senatorial courtesy in New Jersey entitled "Reinforcing New Jersey's Bench: Power Tools for Remodeling Senatorial Courtesy and Refinishing Judicial Selection and Retention" Rutgers Law Review (Fall 2000) 53 Rutgers Law Review 1.
2 The benefits of timely, formal merit-based review should be beyond dispute. According to information compiled by the American Judicature Society, nearly two-thirds of the States have implemented some form of merit review procedures. In only four states (California, Maine, New Hampshire and New Jersey) does the governor appoint judges without a nominating commission, and only one other state - Maine - gives the upper house of the legislature the power of advice and consent.
3 However, Governor Whitman suspended this practice with respect to Supreme Court nominees following the JPAC's finding that Peter Verniero was not qualified.
4 Statewide appointments go directly to the statewide Judicial and Prosecutorial Appointments Committee.
5 Such a process may be plausible at least for statewide appointments which may evade any county based review system.