A judiciary by and for the politicians

February 27, 2023 7:09 am

To protect the court system, the public must appreciate what’s at stake when politicians are willing to let the judiciary wilt, Adam Sopko writes. (Photo by Peter Dazeley/Getty Images

In 1947 New Jersey reimagined its government when the people ratified the current state constitution.

The foundation for the new government was a modern judiciary, which the drafters designed around the fundamental principle that “the courts are for the people.” Since then, the state’s court system has been described as the nation’s finest — a national model.

But today, that tradition of excellence is being subverted. The state’s political leaders have left dozens of judgeships unfilled for years, prompting Chief Justice Rabner to take the drastic step of suspending trials in parts of the state.

It’s time New Jerseyans reminded their representatives that the judiciary was created to serve the people, not for political games.

The engine behind constitutional reform efforts in the 1940s was the vital need to improve the court system, then considered “the nation’s worst.” The courts were seen as too complex, slow, and just another instrument for the political branches’ partisan games. New Jersey needed an efficient, people-centered court system.

The 1947 constitutional convention sought to do just that. On the first day of the convention, Gov. Alfred Driscoll framed the delegates’ important task: The state government needed restructuring, and at its base, the people needed a judiciary they could have confidence in.

That goal served as the convention’s North Star. As the delegates considered various proposals on how to structure the judiciary, their principal commitment was designing a system “for the satisfaction of the needs of our citizens,” not for politicians or lawyers.

The delegates succeeded. In the years following ratification, New Jersey was heralded for exchanging “America’s worst court system for America’s best.” Sibling states — like AlaskaHawaii, and others — have recognized our judiciary’s excellence and incorporated several of its features into their own constitutions.

But New Jersey’s current elected representatives are increasingly undermining the judiciary’s foundational commitment to the people.

For the past several years, the courts have faced a historic level of vacancies that are causing substantial delays, which in turn has impacted the lives of tens of thousands. Individuals accused of crimes are held longer in pretrial detention; parents are unable to see their children for months because most courts can’t hear custody disputes; and many personal injury cases are on hold indefinitely.

Though there are likely several factors that have contributed to this crisis, the governor and Senate are constitutionally obligated to address it, as they have the sole power to appoint and confirm judges. But neither has risen to the occasion.

The governor’s rate of nominations, while the highest in recent years, is still woefully inadequate. Notwithstanding his efforts, the number of vacancies has not meaningfully changed. The Supreme Court has had a vacancy for nearly a year, yet we’re still awaiting a nominee from the governor’s office. Many of these openings, like the one on the Supreme Court, are the result of mandatory retirements and thus are entirely foreseeable. As the judiciary noted publicly last year, the courts cannot function properly when vacancies exceed 25. Yet for the last few years, the state has averaged approximately 50.

New Jersey Supreme Court Chief Justice Stuart Rabner has asked Gov. Phil Murphy and the Legislature to add more judges to the bench. (Courtesy of the New Jersey State Bar Association/Amanda Brown)

Another factor contributing to the vacancy crisis is senatorial courtesy. This unwritten norm created and maintained by the political branches allows a single senator to veto appointees from their home county. Invoking senators don’t need to explain why they’re holding up the process, nor is there even a formal announcement regarding which nominee is held up. So, we often don’t know when courtesy is invoked, by which senator, over which appointee, and for what reason.

As one former senator observed, courtesy creates leverage for senators “that they would otherwise not possess.” According to another, “if you truly want to be a power player in the Senate, you are actually better off serving in the minority with a governor of the opposite party.” It can be invoked for reasons related to a nominee, but it can also be invoked to force a deal on something entirely unrelated to the courts.

As Gov. Chris Christie once noted, “[n]o governor likes senatorial courtesy, and every senator loves it.”

While individual instances of courtesy may be desirable or undesirable, it’s the abuse of the practice that’s problematic, especially here, after Chief Justice Rabner explained nearly a year ago that something had to change as the judiciary was on the verge of a crisis.

Yet the political branches continue to use vacancies as bargaining chips, once again positioning the court system as a political tool rather than an instrument for the people — the very misuse the delegates sought to eliminate in 1947. It’s no wonder the judiciary is atrophying; the system was not designed for this gamesmanship.

Several potential solutions have been proposed, ranging from challenging courtesy’s constitutional status to asking lawmakers to hold a multi-day nomination “summit.” These are perhaps worth considering.

Another avenue to consider might follow former Chief Justice Vanderbilt’s lead, who suggested meaningful change to the court system comes from “direct appeal to the people.”

On this view, civil society groups and activists could play an important role by illustrating to the people what our courts do and why they matter. To protect the court system, the public must appreciate what’s at stake when politicians are willing to let the judiciary wilt.

The courts are currently closed for divorce proceedings and fender-benders in parts of the state. What’s next? Suspending other kinds of cases? Will these judicial blackouts extend to even more of the state?

It’s time New Jerseyans reminded their representatives that the judiciary was created to serve the people, not for political games.

– Adam Sopko

As the U.S. Supreme Court continues to shift questions of civil rights to the states, state courts will become even more important in protecting fundamental rights. While the politicians continue viewing vacancies as currency to barter with, New Jerseyans will increasingly be left without options to enforce those rights.

Organizing efforts might connect the dots from this intolerable situation to the voting booth. Judges in New Jersey aren’t elected, but the people who select them are. With all 40 seats in the Senate on the ballot this fall, perhaps there’s an opportunity for change.

No doubt this will take hard work. But as Justice Stewart Pollock once observed, while reflecting on the 1947 constitution’s successful reforms, the cost for maintaining the state’s exceptional system is “constant vigilance.” Perhaps we need to remind the political branches that we think that’s a price worth paying.


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Adam Sopko
Adam Sopko

Adam Sopko is a staff attorney at the State Democracy Research Initiative at the University of Wisconsin Law School. He previously served as a law clerk for Chief Justice Stuart J. Rabner. Sopko lives in Bergen County and can be reached by email at [email protected].