Despite repeated public pleas from Chief Justice Stuart Rabner and sharp criticism from the State Bar Association, Gov. Phil Murphy has remained unmoved and his apparent deliberate slow walking of judicial nominees continues much to the consternation and puzzlement of the legal community.
The Administration response to the appeals for it to act more expeditiously to fill the three vacancies on the Supreme Court and 63 vacancies in the lower courts has been its customary mixture of denial and casual indifference — the typical reaction when confronted with any issue it prefers to not deal with and wishes would simply disappear in the constant churn of the daily news cycle.
The governor, in a statement that was as embarrassing as it was vapid, has “vigorously worked to fill judicial vacancies since he took office in 2018.” It went on to point out the number of nominees and Senate confirmations since the outset of the Administration.
The seven-member Supreme Court has but four sitting members — the greatest vacancy rate since the adoption of the 1947 state constitution — while the shortage of judges in the Superior Court has led to long and costly delays in criminal and civil proceedings.
Jeralyn L. Lawrence, the state bar president, was unsparing in her criticism, characterizing the vacancy rate as “mind boggling, catastrophic, unheard of, historic.”
“Access to justice is compromised,” she said, “real people, families, children are being harmed,” while the governor and the Legislature have failed to address it.
The Administration appears to not share the urgency expressed by the Chief Justice or the bar association, willing to ignore or accept the personal impact on those who depend on the judicial system to resolve grievances or seek justice in a timely fashion.
One nomination of a Supreme Court Justice — that of Rachel Wainer Apter — was submitted 16 months ago but Senate consideration has been blocked by Sen. Holly Schepisi (R-Bergen) who has invoked the unwritten rule of senatorial courtesy and steadfastly refused to reveal her objections.
For Murphy, however, to sit by idly for 16 months rather than use his executive clout to resolve the deadlock with Schepisi is at odds with previous governors who understood the crucial role of the state’s highest court and strove to maintain its strength and independence.
Senatorial courtesy is an enormous bargaining chip in the hands of Senators in dealing with a governor, a reality which forces negotiation and compromise which purists may find offensive but in political terms is the only path to ending an impasse.
Whether Murphy refuses to bend to the force of courtesy or considers it a matter of lower priority is unclear, but allowing a nomination to languish for 16 months with no apparent effort to resolve it is difficult to rationalize.
Nor does it adequately address his inaction on filling the vacancies in the lower courts, the judicial level which affects the lives of far more people.
The bar association president painted a grim picture of a court system in crisis — criminal defendants incarcerated without bail, personal injury cases postponed indefinitely and causing financial hardship and personal suffering, parents involved in divorce proceedings unable to see their children because court access is delayed for extended periods of time.
Her description makes a mockery of the Administration defense that the governor has “worked vigorously” since he took office to fill vacancies on the courts.
Because all judges are required to retire from service upon reaching 70 years of age, potential vacancies are simple to track and foresee rather than being thrust surprisingly on an unaware governor’s office and forcing a delay in responding.
Like all gubernatorial nominations, political considerations play a central role — that is simply a fact of life — and frequently result in delays while those involved work their way through them.
It is, though, an equally significant fact of life that a governor’s office be prepared to stay ahead of the curve, anticipate the retirements with sufficient advance knowledge to select and vet a potential replacement.
The current straits in which the judiciary finds itself suggest the governor’s office is less than diligent in meeting that responsibility.
For those who believe Sen. Schepisi’s obstinance in blocking Wainer Apter’s nomination will lead to the abolition of senatorial courtesy, it is a triumph of hope over experience.
The tradition is an ingrained part of political life and will never be pried loose or voluntarily ceded.
It appears that the Murphy Administration will continue slow walking its judicial nomination process, willing to accept and overlook the warnings from the Chief Justice and the legal community of the dire consequences that will result while presumably issuing stale statements that avoid addressing the crux of the issue.
Carl Golden is a senior contributing analyst with the William J. Hughes Center for Public Policy at Stockton University. Full disclosure: From 1990 to 1993, Golden served as communications director for the Administrative Office of the Courts, representing the judicial branch from Supreme Court to the lower courts.