Judicial vacancies poised to edge past 2020 high

The number of New Jersey’s judicial vacancies has barely budged in the last 19 months, despite repeated warnings that the dearth of judges is causing slowdowns in court operations statewide.

Meanwhile, stopgap appointments made to keep the New Jersey Supreme Court operating in its upcoming term could leave the state Superior Court with fewer judges than it had at the end of 2020, when the state had more judicial vacancies than it had in the 15 years prior.

By December 2020, years of intra-party struggle between Gov. Phil Murphy and legislative leaders — and 10 months of a pandemic — had swollen court vacancies to 66. Currently, 59 seats Superior Court seats are empty, and as many as five judges are expected to retire by the end of August, a judiciary spokesperson said.

Appellate Division Judges Clarkson Fisher, Jack Sabatino, and Douglas Fasciale — who will ascend to fill the state’s three vacant Supreme Court seats on an interim basis next month — aren’t included in those counts, but their reassignments would effectively push vacancies to 67 if the expected August retirements happen.

“You don’t have to be a math major to realize we’re going in the wrong direction here,” said Jeralyn Lawrence, president of the New Jersey State Bar Association. “You already have overworked and overwhelmed judges that are tending to triage every day, addressing gaping wounds of cases.”

Chief Justice Stuart Rabner, who has said little publicly of the courts’ staffing woes since he delivered a dire State of the Judiciary address in May, acknowledged the short-term solution to the Supreme Court’s vacancy issue won’t be painless.

“Those reassignments will have significant impact on the Appellate Division,” he said in his order making the temporary promotions.

Rabner’s move to fill the Supreme Court comes after a 17-month stalemate between Murphy and a Republican state senator who has blocked Murphy’s most recent appointment to the high court. Since Murphy’s initial March 2021 nomination of Rachel Wainer Apter, the number of vacancies on the seven-member court has grown to three.

Rabner earlier this year named Judge Jose Fuentes to fill one of the vacancies, but otherwise resisted elevating any more Appellate Division judges to the Supreme Court, warning that additional appointments would imperil the court’s history of partisan balance. The appointments announced Monday will leave four Democrats and three Republicans on the court.

Fuentes’s pending Sept. 1 retirement would have left the panel with too few members to reach a quorum absent action from Rabner or the state Senate, where Wainer Apter’s nomination is still blocked by Sen. Holly Schepisi’s invocation of senatorial courtesy, an unwritten rule that allows lawmakers in the upper chamber to unilaterally and indefinitely block some gubernatorial nominees.

Schepisi did not return a call seeking comment Tuesday. Murphy has not made nominations to the high court’s two other vacant seats.

“While the governor wants to play chicken with the Supreme Court, clearly the chief justice doesn’t, so kudos to him for doing that, but it’s got to be a call to action for the governor,” Lawrence said. “I mean, how do you have three vacancies and one nomination that’s sat for 16 months? What are you doing?”

A spokesperson for the governor declined to say whether Rabner’s move put a new urgency on judicial nominations.

“Governor Murphy hopes to see his pending nominees for the Supreme Court and the Superior Court move through the confirmation process and will continue to work with the Senate to identify additional nominees,” said Natalie Hamilton, the spokesperson.

The Senate Judiciary Committee convened last week to advance the nominations of four Superior Court Judges, who were confirmed by the full chamber later the same day. Eleven other judicial nominees are awaiting confirmation. One, Nadia Kahf Alqudah, has been waiting since March, and three of the nominations were received by the Senate only last week.

The Senate is not scheduled to meet again until September, but if all 11 judicial nominees awaiting confirmation were approved by the Senate tomorrow, 48 Superior Court seats would be vacant. That would still leave them far off of reaching a sustainable level for the courts, which Rabner has said is around 25 to 30 vacancies.

Sen. Brian Stack (D-Hudson), chair of the Senate’s Judiciary Committee, which must approve Murphy’s judicial nominations before they receive a vote in the full Senate, last week said he is willing to return again in August to approve more judges, but no such meetings have been scheduled.

Senate President Nicholas Scutari (D-Union) presented a slightly higher bar for another summer session, saying the chamber would return if it had to address matters “of a very significant nature.”

It’s not clear whether the temporary appointments and growing judicial vacancies qualify. A spokesperson for Scutari declined to comment.

Scutari last week pointed to a dearth of nominations and a lengthy vetting process to explain the slow roll of judicial confirmations.

“We can only consider nominations that are made. We can’t initiate nominations. We’re vetting them as quickly as we get them,” he said told NJ Spotlight News, later adding, “We can’t get away from an extraordinarily important vetting process because these get on these benches, generally, for life.”