Senate will meet in summer to confirm judges as vacancies remain stubbornly high

State senators will make a rare return to Trenton to continue confirming judges during the Legislature’s customary summer recess amid stunning court vacancies, a top Democrat said Monday.

Sen. Brian Stack, who chairs the Senate Judiciary Committee, said the panel may meet once more before the Legislature approves a budget (the deadline is July 1), and then once or twice again before September. The committee must approve Gov. Phil Murphy’s judicial nominees before they go to the full Senate for a vote.

“Obviously, we have a lot more to go, and we’ll continue to work on them. As long as we can have these meetings over the summer, we’ll be in good shape. We could move a good bulk of them,” said Stack (D-Hudson).

Richard McGrath, a spokesperson for Senate President Nicholas Scutari (D-Union), said the full Senate would return during its summer recess to approve any judges advanced by Stack’s committee.

In even-numbered years when regular legislative races are not on the ballot, the Legislature typically breaks after passing a budget and does not reconvene until late August or early September. Lawmakers occasionally meet during those months to pass legislative fixes or address emergent needs, like the state’s judicial vacancy crisis.

As of Monday, 69 seats on the Superior Court are vacant, 16% of the total seats on the bench. That number will fall to 67 once two already-confirmed judges are sworn in, and it will likely decline to 64 next week, when the full Senate is expected to confirm three judges the committee approved Monday.

The effects of the shortage are so severe that some counties have stopped holding certain types of trials altogether to keep criminal, family, and domestic violence cases moving, Chief Justice Stuart Rabner said last month. Other types of cases face years-long wait times in some counties, Rabner said.

The shortages come as the court system faces a still-massive case backlog accumulated during the pandemic. While the courts have made strides to reduce the number of waiting cases from the record 97,028 reached last September, there were still 80,528 backlogged cases in April, the latest month for which data is available.

The courts mark a case backlogged if it has not been heard within a set period of time, which varies based on the type of case.

Summer confirmations could do much to fill vacancies on the bench, but they won’t lower the number to what court officials believe is a sustainable level unless Murphy makes more nominations. It’s not clear if he will, and a spokesperson for the governor did not immediately return a request for comment.

“If they can move nominations, I think the Senate president and myself would be more than willing to move them along,” Stack said. “I don’t think we should have this many vacancies. I think we should really get busy and get them moving along.”

Nineteen of Murphy’s judicial nominees were awaiting confirmation on Monday, but only three of them have cleared the chamber’s judiciary committee, which advanced the three at its hearing Monday morning. If each is confirmed before September, court vacancies would drop to 55. Seven more judges are expected to retire in July and August.

Rabner has said the courts could operate sustainably if vacancies were reduced to between 25 and 30.

Lawmakers have made some strides toward that goal since this legislative session began in January. They’ve confirmed 15 new judges and awarded 17 others tenure, but reaching a sustainable level of vacancies in the current session would require Murphy to get more judges confirmed than he did during the entirety of his first term.

In New Jersey, judges are confirmed for an initial seven-year term. If they are renominated and reconfirmed at the end of that term, they can continue to serve until they reach the mandatory retirement age of 70, which lawmakers have occasionally flirted with raising.

High court vacancies

The vacancies extend past the Superior Court. Barring a last-minute turnaround, three of New Jersey’s seven Supreme Court seats will be without a confirmed justice on July 7, when Justice Barry Albin turns 70.

Murphy has made a nomination to only one of those seats, putting forth Rachel Wainer Apter, director of the New Jersey Division on Civil Rights, for the seat emptied by Justice Jaynee LaVecchia’s December 2021 retirement.

State Sen. Holly Schepisi (R-Bergen) has stalled Wainer Apter’s nomination for more than a year by invoking senatorial courtesy, an unwritten rule that allows senators to unilaterally block some gubernatorial nominees. Schepisi has expressed concern that the confirmation of a Democrat (Wainer Apter) to replace an independent nominated by a Republican governor (LaVecchia) would upset the partisan balance on New Jersey’s high court.

Wainer Apter’s stalled nomination — she was first nominated in March 2021 — has contributed to the high court’s vacancy problem.

In January, Rabner tapped Appellate Judge Jose Fuentes to temporarily fill the seat Wainer Apter was nominated for. A month later, Justice Faustino Fernandez-Vina retired after reaching the mandatory retirement age, but Rabner did not make an interim appointment, leaving the seat vacant. When Albin is forced to step down next month, his seat is also expected to remain vacant.

When Rabner left Fernandez-Vina’s seat vacant, he said he did not want to imperil the court’s history of partisan balance. The judge next in line to temporarily fill a vacancy on the court is a Democrat, and his appointment would swell the number of Democrats on the court to five.

A senior Murphy administration official in February told the New Jersey Monitor the governor’s office was focused on Wainer Apter’s nomination and would not nominate anyone else to the high court until after her confirmation.

Last week Murphy declined to say when he might nominate a replacement for Fernandez-Vina and Albin.

Legal experts have expressed concern about the Supreme Court operating starting next month with only four confirmed justices, a concern echoed by Stack on Monday.

“Every court system, from municipal up to Supreme Court, is as important, but the Supreme Court is really the leader in our state and our court system, and we should have a full complement,” Stack said.