Judicial retirements poised to erase progress made on appointing judges, chief justice warns

New Jersey Supreme Court Chief Justice Stuart Rabner urged legislators and Gov. Phil Murphy to do more to end the state’s longstanding judge shortage, warning during a speech Friday that what little progress had been made over the last year risks being erased by pending retirements.

When Rabner delivered a similar warning during his annual “State of the Judiciary” address last year, 75 seats on the state Superior Court bench were empty, a 17% vacancy rate. A year later, Murphy and the Senate have cut that down to just 64, a 15% vacancy rate.

But retirements expected through the end of the year could bring that number as high as 84, and six of those retirements will come in just the next two weeks, Rabner said Friday.

“Make no mistake about it: This problem will not simply go away,” he said.

For the last three-and-a-half years, court vacancies have averaged above 50, and they’ve stayed above 60 for almost every month in the last two-and-a-half years, Rabner said. The chief justice and other court officials have said the Judiciary could operate sustainably with between 25 and 30 vacancies.

Thirty new nominees to the Superior Court await confirmation.

“The governor is hopeful that these qualified nominees will be swiftly confirmed to build on the progress that has been made,” said Tyler Jones, a spokesperson for the governor who added Murphy is committed to working with the Senate to fill vacancies.

Many of the vacant seats have been so for years, and each of those longstanding vacancies can delay more than a thousand cases, he said.

“I hesitate to talk about statistics and backlog … because there’s always a risk that we will miss the point. Every case has its own story. Every case matters. Someone has been harmed, aggrieved,” Rabner said.

The court reported 69,578 backlogged cases in March after three consecutive months of backlog declines, but the number of backburnered cases still dwarfs the number of such cases seen before the pandemic.

Judicial vacancies have been a problem for much of Murphy’s tenure as governor. He became the chief executive in January 2018 after a flurry of confirmations made in the closing months of Gov. Chris Christie’s second term. There were just nine vacancies at the end of 2017.

Vacancies swelled during Murphy’s first three years in office amid intraparty standoffs with the Legislature’s Democratic leadership, but the number of empty seats on the bench has barely moved since those relations thawed.

The Senate Judiciary Committee advanced the nominations of three would-be Superior Court judges Thursday alongside more than a dozen nominations for tenure on the bench.

New Jersey judges serve an initial seven-year term and can sit on the bench until they reach the age of 70 if they are confirmed for tenure.

The vacancies have grown severe enough that Rabner in February suspended civil and divorce trials in two court jurisdictions spanning six counties. On Friday, he repeated a warning that court officials have issued for months: Unless the courts are staffed up, trials could soon be suspended elsewhere.

“For additional vicinages, particularly those where there is a high percentage of vacancies, the problem, unfortunately, may get worse before it gets better,” the chief justice said.

Bail reform

Rabner’s speech came during the annual meeting and convention of the New Jersey State Bar Association.

He also hailed the success of criminal justice reforms enacted in 2017 that all but ended the state’s cash bail system in favor of one that lends judges discretion to release low-risk defendants before trial and detain those facing more serious charges.

Those released pretrial showed up to court more than 95% of the time, he said, an improvement from the old regime, and the system has not increased recidivism but has sharply reduce the state’s jail population.

“The jail population today is comprised of a higher percentage of individuals charged with more serious offenses — first and second-degree crimes,” Rabner said. “It no longer includes poor people who pose minimal risk of danger and flight but can’t afford bail, which had been the case in the past.”

A list of recommendations on further reforms from a committee Rabner convened in February is due in the coming weeks, he said.

Attorney mental health & court pilots

The chief justice said Supreme Court Justice Lee Solomon has agreed to lead a committee examining mental health challenges faced by New Jersey’s law practitioners.

That committee’s formation follows a startling report by the New Jersey Bar Association that found high incidence of depression, isolation, suicidality, and substance abuse among the state’s lawyers.

Rabner hailed progress on two court pilot programs, one meant to reduce the frequency with which individuals who have mental illnesses make contact with the courts and another to ensure a more even-handed jury selection process.

“Across the nation, countless people suffer from mental illness and are arrested each year,” he said. “Those cases are typically processed with little attention paid to the underlying problem, so the cycle repeats itself again and again.”

The former pilot, modeled after a Miami-Dade County program meant to divert individuals with severe mental health issues outside of the criminal justice track, has seen some success despite its implementation being delayed by the pandemic.

That program, Rabner said, has contributed to the state Office of the Attorney General adopting additional training on de-escalation and had led more prosecutors to seek diversions for defendants with mental health issues.

He thanked Human Services Commissioner Sarah Adelman and Morris-Sussex Vicinage Assignment Judge Stuart Minkowitz for securing $2 million in funding for a behavioral health teams pilot program.

A second pilot program on jury selection that allows attorneys to more closely question jurors has reduced the number of peremptory challenges issued during the jury selection process below reduced caps set by the judiciary, Rabner said.