Despite repeated public pleas from Chief Justice Stuart Rabner and sharp criticism from the State Bar Association, Gov. Phil Murphy has remained unmoved. His apparent deliberate slow walking of judicial nominees continues, much to the dismay and puzzlement of the legal community.
The Administration’s 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 it would simply disappear in the constant churn of the daily news cycle.
In a statement that was as embarrassing as it was vapid, the governor has “vigorously worked to fill judicial vacancies since he took office in 2018.” It pointed 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 lengthy 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.” Yet, at the same time, the governor and the Legislature have failed to address it.
The Administration appears not to 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. Still, 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. This reality 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 isn’t easy 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 a divorce cannot see their children because court access is delayed for extended periods of time.
Her description makes a mockery of the Administration’s defense that the governor has “worked vigorously” since he took office to fill court vacancies.
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 into 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 an equally significant fact of life that a governor’s office is prepared to stay ahead of the curve and anticipate retirements with sufficient advanced knowledge to select and vet a potential replacement.
The current straits in which the judiciary finds itself suggest the governor’s office is less 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.
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 slowly 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.