A proposal to amend the State Constitution to change the state appellate is facing stiff opposition from Chief Justice Stuart Rabner, who is making calls to stakeholders in an attempt to shut down a legislative proposal that would take away his unchecked power to directly appoint appellate court judges, transferring the appointment to the governor, with advise and consent from the State Senate.
Rabner was provided a courtesy copy of a draft piece of legislation, still not yet introduced, and proceeded to call Bar Association influencers; details of the proposal were leaked, possibly by the chief justice himself.
The messaging, so far, is clear: Rabner is categorizing the bill as a power grab by senators to influence who serves as appellate judges. Supporters of the proposal argue that the ability to handpick the 27-member appellate court – the six associate justices have no say – is too much.
“You’ve got one man, one unelected, untouchable man with tenure, deciding everything,” a sitting Superior Court judge, speaking on the condition of anonymity to avoid retaliation, told the New Jersey Globe. “The chief justice wants to protect his power, not give it away, just like the recent court case where the county chairmen wanted to protect their line.”
Rabner quickly issued a statement expressing concerns about the proposal. Publicly, he defended the current system; privately, he’s trying to kill it. One influential Bar Association leader confirmed that Rabner reached out, but declined to permit any details of his conversation to be printed.
“The Constitution of 1947 shaped an effective and balanced intermediate court that has existed for three-quarters of a century. To amend the Constitution in a way that would politicize the appointment process would have real consequences,” Rabner said. “Before any amendment might be considered for a vote, we should carefully debate and evaluate the proposal and its impact on the cause of justice.”
The Superior Court judge confirmed that Rabner was attempting to put a target on the back of Senate President Nicholas Scutari, a trial lawyer, and former Senate Judiciary chairman with the ability to make or break a judicial nomination.
At the swearing-in of a Superior Court judge in Somerset County yesterday, Scutari joked about the possible shift of the appointment of appellate judges from Rabner to the governor.
“I’m taking resumes,” he said.
The judge said that Rabner and the acting director of the administrative office of the courts, Glenn Grant, have been traveling to judicial vicinages in recent months and have discussed potential constitutional amendments that might change the judiciary.
In particular, Rabner and Grant, in private meetings with judges, spoke of a possible move to increase the mandatory retirement age above the current level of age 70. But they warned that a legislative effort to amend the State Constitution could open a pandora’s box of other changes – perhaps like how appellate court judges are picked.
New Jersey has deftly avoided electing judges, but it’s the only state where a single chief justice who names all appellate judges, albeit only from the pool of trial court judges named by the governor, without the need for any approvals.
Since 1947, the State Constitution gave the chief justice of the New Jersey Supreme Court unimpeded authority to elevate Superior Court judges at his discretion to the appellate division. That has made Rabner, at least constitutionally, the most powerful chief justice in the nation.
The chief justice also determines every judicial assignment, and picks presiding and assignment judges.
Rabner’s power stems from an old-school, Jersey-style political deal between two New Jerseyans who intensely disliked each other.
Arthur Vanderbilt, the Essex County Republican leader, had been feuding with the state’s GOP governor, Alfred Driscoll, just as delegates were preparing to approve a new State Constitution in 1947. Driscoll wanted a powerful executive branch, and Vanderbilt wanted to be chief justice.
Vanderbilt controlled a large and pivotal block of votes in North Jersey. Pre-1947, New Jersey governors served for three years and were term-limited; Driscoll wanted a second term.
As a result, Essex delegates, and others, supported Driscoll’s push for a constitutionally strong governor, and in turn, Vanderbilt, a judicial reform advocate, wrote the job description of the chief justice with himself in mind.
After the new State Constitution was ratified, Driscoll kept his word and nominated Vanderbilt as the first chief justice of the newly constituted top court.
The change listed in the draft legislation would make the New Jersey Judiciary more comparable to the federal courts, where the President nominates appellate court judges, and the U.S. Senate confirms them.
The current system would be akin to Chief Justice John Roberts handpicking every judge of the U.S. Court of Appeals in every circuit, without checks and balances like Senate confirmation or even agreement from other justices, a proponent of the changes said.
The draft of the bill, which has been reviewed by the New Jersey Globe, shows that the proposed constitutional amendment eliminates the appellate division and replaces it with a state Court of Appeals.
It also creates the position of chief judge of the Court of Appeals, which would be nominated by the governor and subject to Senate confirmation. Currently, Rabner picks the chief judge.
Sources have told the New Jersey Globe that there is some interest in flipping Grant’s job – which is essentially the COO of the judiciary – to a gubernatorial appointment with the Senate exercising an advise and consent role. That’s not in the current proposal.
In his statement, Rabner extolled the virtues of the judiciary set up by the delegates to the 1947 Constitutional Convention.
“New Jersey’s Appellate Division is widely regarded as one of the finest intermediate appellate courts in the nation,” he said. “It is comprised of gifted judges who gained valuable experience at the trial court level, and who collectively address thousands of appeals every year. They serve the public well.”
Still, five of the seven justices of the New Jersey Supreme Court, including Rabner, had no prior judicial experience.
He also expressed “serious concerns” that direct appointments to a Court of Appeals “would lead to vacancies that would in turn delay justice for countless litigants.”
It’s unclear whether the proposed changes would still allow Rabner to temporarily elevate Superior Court judges to fill in any gaps.
Rabner turns 64 next month and in the absence of an unplanned early retirement, is in his last six years as chief justice. The winner of the 2029 governor’s race will pick his successor, with Senate approval.
Gov. Jon Corzine nominated Rabner to serve as chief justice in 2007 and is on track to be chief justice for 23 years.
On May 21, Rabner will become the longest-serving chief justice in New Jersey history.
Gov. Chris Christie did not intend to renominate Rabner for tenure as chief in 2014; instead, he was eyeing other candidates and considered offering Rabner an ability to remain on the top court as an associate justice.
Since facing criticism from the late State Sen. Ronald Rice (D-Newark) and others for a lack of diversity and partisan balance in the highest levels of the state judiciary in 2021, Rabner has taken steps to promote more appellate judges of color and increase the partisan balance. Right now, 30% of appellate judges are diverse.
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