Murphy’s slow roll on courts now ‘catastrophic’

COLLEEN O'DEA, SENIOR WRITER AND PROJECTS EDITOR | AUGUST 3, 2022

NJ Spotlight News

Jeralyn L. Lawrence, president of the New Jersey State Bar Association, says the number of judicial vacancies is "mind-boggling."

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The existence of three open seats on the New Jersey Supreme Court less than a month before it begins its new term is both “historic” and “catastrophic,” the president of the New Jersey State Bar Association said, urging Gov. Phil Murphy and senators to quickly confirm nominees for those seats and to fill another 63 openings on the state courts.

“It’s mind-boggling. It’s catastrophic. It’s unheard of. It’s historic,” said Jeralyn L. Lawrence, the bar association president. “Here we sit, less than a month away from the next session, and we have a Supreme Court that’s forty-three percent vacant. Can you imagine any profession operating with a forty-three percent vacancy?”

Echoing comments by Chief Justice Stuart Rabner, superior court judges and the administrator of the state courts, Lawrence said that people are suffering.

“Access to justice is compromised,” Lawrence said. “Real people, families, children are being harmed. And we’ve been talking about this for months. Our judiciary is not functioning properly, and the governor and the Legislature are not acting swiftly enough to fix the problem.”

Criminal cases have been delayed, keeping some defendants in jail without bail for longer than the five-year-old criminal justice reform envisioned. Most personal injury cases are postponed indefinitely. Divorce trials are also on hold in most counties.

Divorce, domestic violence

Specifically, Lawrence cited the case of a father seeking “parenting time” with his child as part of a divorce case. Because of the high number of judicial vacancies, judges have had to prioritize cases. In family court, cases involving domestic violence allegations and protection orders are taking priority. The father’s motion, filed in May, could not be put on the calendar until September, forcing him to miss spending time with his child this summer.

“You have parents who are not able to see their child for weeks or months because they’re not getting access to a court,” Lawrence said.

Like others, she is at a loss to explain the cause of the logjam.

One of the features of New Jersey’s governorship that makes it arguably the most powerful in the nation is the ability to nominate judges and Supreme Court justices. So it is puzzling why Murphy, who can create a multi-decade legacy with five Supreme Court nominations during his eight years in office, has yet to nominate  candidates for two of the three openings on the state’s most powerful court. The one nomination he did make has been stalled by a Republican state senator for 16 months. Three openings on the seven-member Supreme Court is the largest number since the adoption of the current state Constitution in 1947, according to the state administrative office of the courts.

An additional 63 seats are open on the Superior Court bench with another dozen judges retiring at age 70, as required, or early before the end of the year. The Senate has taken the unusual step of scheduling two dates next week to consider Superior Court nominees. But only two are scheduled for next Monday’s committee hearing. Even if all 15 pending nominees were to be approved next week, that would still leave more vacancies than state court officials consider manageable.

Rabner made the case months ago

Last spring, Rabner and other court officials pleaded for nominees to fill Superior Court positions. The number of vacancies reached a record high of 75 on May 1. The Senate then approved a number of judges but Murphy has only submitted 14 nominees to the Senate since May 1, including four notices on Monday. Lawrence said the state bar association’s judicial and prosecutorial appointments committee has already vetted a number of other candidates that Murphy has yet to nominate.

Richard McGrath, a spokesman for the Senate Democrats, said the Senate president and chairman of the Senate Judiciary Committee — which hears nominations — understand the importance of filling positions; he said the committee tries to move as quickly as possible, which is why it has scheduled sessions for next week. But candidates do need to be interviewed, so it does take time.

“We understand that it takes time,” Lawrence said. “I understand you want the best and the brightest; we get all that. But the length of time that these vacancies have sat, it’s just unconscionable and unnecessary … Just based on the pure numbers, it does not look like any meaningful relief is in sight.”

Five of the pending nominations for the Superior Court were submitted in May and one dates to February, which should have given enough time to be confirmed by the Senate before it recessed at the end of June.

The state bar on Monday joined with all 21 county bar associations and seven other lawyers’ organizations to “implore” Murphy and the Senate “to act with all haste to fill these vacancies.”

Murphy’s response

When asked this week about the vacancies by NJ Spotlight News, Murphy’s office provided a statement similar to ones it has issued in the past.

“Governor Murphy has vigorously worked to fill judicial vacancies since he took office in 2018,” said Natalie Hamilton, a spokesperson. “Since then, the Senate has confirmed a total of 87 Superior Court judges nominated by the Governor. In calendar year 2022, 32 Superior Court judges have been confirmed and 11 judicial nominees await confirmation by the Senate. The Governor nominated Rachel Wainer Apter to fill a vacant Supreme Court seat over 16 months ago and continues to await the Senate giving her a hearing and a vote.”

Wainer Apter was nominated to the Supreme Court to fill the seat vacated by Jaynee LaVecchia. Her nomination is reportedly being held up by Sen. Holly Schepisi (R-Bergen), who is using an unwritten rule known as senatorial courtesy that allows senators to block nominees from their home counties without explanation. Wainer Apter lives in Englewood, but recently told a group of students she might move to a different county to get around the issue.

LaVecchia had announced her retirement in March 2021 but stayed on until the end of last year at the behest of Rabner. When her position still wasn’t filled, Rabner appointed Judge Jose Fuentes, the most senior appellate judge, until a nominee is confirmed.

Two more Supreme Court justices have retired at age 70, as required by law: Faustino Fernandez-Vina in February and Barry Albin last month. Rabner said he would not temporarily appoint someone to fill Fernandez-Vina’s vacancy because the political leanings of the next most senior appellate judge would have skewed the relative balance of the court. New Jersey governors and senators have adhered to another unwritten rule, one that seeks to keep an even number of Democrats and Republicans on the court, with the governor being able to name a member of his party for the seventh seat. Fernandez-Vina is a Republican and the judge next in line for temporary appointment is a Democrat. Rabner has not made any statement about filling Albin’s seat temporarily.

Murphy, if he follows precedent, could name two Democrats and one Republican. And even if he refuses to give up on Wainer Apter — and that seems to be the case — he should still be able to nominate another Democrat and one Republican.

Currently the justices are split, with two Democrats and two Republicans. Fuentes is a Democrat and on controversial cases sides with the Democratic majority.

Rein in ‘senatorial courtesy’?

John Weingart, director of Rutgers University’s Center on the American Governor within the Eagleton Institute, said Murphy’s failure to make additional nominations to the Supreme Court is puzzling.

“I don’t know whether that’s part of the standoff over the one nomination he did make, but if there’s ever going to be pressure to try to rein in senatorial courtesy, having three vacancies on the Supreme Court is about as dramatic a situation as you can get, until we hit that fourth vacancy,” he said.

There will be another vacancy in two years when Associate Justice Lee Solomon, a Republican, turns 70 in August 2024.

Murphy already has put one person on the court, Justice Fabiana Pierre-Louis. The first Black woman on the Supreme Court, Pierre-Louis was confirmed by the Senate two years ago.

Whatever solution is reached, Lawrence said it needs to happen quickly.

“You don’t have enough judges in the seats dispensing justice,” she said. “The judges are stretched too thin. It’s triage every day, judges prioritizing ‘what’s the most harmful case on my calendar today that I have to attend to?’” Referring to Murphy and senators, Lawrence said,” This should be really one of the top things on their mind every day, to get these filled, and there’s absolutely no sense out here that they’re acting with the urgency which this catastrophic situation calls for.”

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published this page in News and Politics 2022-08-03 02:48:59 -0700