OPINION
As the Trump administration and the U.S. Senate continue to fight over U.S. Attorney nominees, a number of U.S. Attorney's Offices around the country have been thrown into chaos. The nation is seeing how our criminal justice system can suffer when the elected branches of government are at loggerheads.
Four years ago, in early 2022, some people in New Jersey were saying the same thing about judicial vacancies on our Superior Court. After a massive increase in discretionary retirements during the stresses of the COVID-19 pandemic, judicial vacancies rose all the way from 12 in early 2018 to a high of 78 in May of 2022. Some observers in the bar claimed that the judicial appointment system was broken, and floated wholesale changes such as abolishing senatorial courtesy or even electing judges.
But it turns out the system wasn't broken at all. Since the spring of 2022, the number of judicial vacancies has steadily fallen, and after yesterday's confirmations of 16 Superior Court nominees by the Senate, the number of vacancies stands at just 11. How was that progress made? From my perspective, there were five reasons.
(1) High-level focus and prioritization. In the middle of 2022, when I was serving as Governor Murphy's chief counsel, the Governor called a meeting with me, George Helmy, the Governor's chief of staff, and Tim Hillmann, then serving as the Governor's deputy chief of staff for legislative affairs. Now that the time-consuming responsibilities of managing the State's pandemic response had subsided, the Governor made it clear that the three of us had to direct personal time and attention to reverse the tide of rising judicial vacancies. The Governor also asked that we increase our coordination with the leadership team in the Senate who had recently taken charge, Senate President Nick Scutari and then-Senate Majority Office executive director Tim Lydon.
From that point forward, we had hour-long meetings every Monday in the Governor's Office where we would go through all of the current judicial vacancies, work to identify and move forward nominees, and compare notes on what we were hearing from the Senate – both from leadership and from individual Senators. This ensured that we were making progress every week and that we all had the most up-to-date information, and could work together as a team that was on the same page.
(2) Commitment to an apolitical process. J.S.A. 2A:3-14 requires that Superior Court judgeships “be, as nearly as possible, in equal numbers, members of different political parties.” As a result, Superior Court seats are informally divided into “Democratic” and “Republican” seats, ensuring a partisan balance. Our administration continued to abide by this practice, but more broadly, our administration did not consider ideology when evaluating nominees for trial-level judgeships. We judged potential nominees based on their experience and character, and we firmly believed that the judiciary benefits from having judges with a diversity of viewpoints. Moreover, when soliciting candidates from Senators, we treated Republican Senators exactly the same as Democratic Senators. It simply did not matter whether a Senator was aligned with the administration's agenda or not, as Governor Murphy was fully committed to keeping the judicial confirmation process above partisan politics.
(3) Leadership from the Senate. While some Superior Court nominees originate from the administration, the reality is that most Superior Court nominees are recommended by Senators. Recognizing the urgency of the crisis, the whole Senate worked to accelerate sending us names, both for current vacancies and vacancies that would emerge in the future. Just as importantly, we saw Senators from individual counties work well with each other. In the past, when Senators from a particular county were not getting along, they would often refuse to sign off on each other's nominees, allowing judicial vacancies to accumulate. We saw very little of this over the last four years, as Senators approached the judicial appointment process collaboratively as opposed to transactionally. And when nominations were formally submitted, Senate President Scutari and the Senate Judiciary Committee, led by Chairman Brian Stack, ensured that the nominees would move through the Senate without delay.
(4) Vetting nominees quickly. One of the holdups in the judicial appointment process can be the many layers of review in the vetting process, including completion of the judicial questionnaire, an interview with the Governor's Office, completion of a State Police 4-way background check, review by the Judicial Advisory Panel, and approval by the State Bar's Judicial and Prosecutorial Appointments Committee. Our Appointments Counsel Val DiPippo (herself confirmed as a Superior Court judge last month) and Appointments Director Samantha Parker led the charge on moving nominees through the many layers of review as quickly as possible. Both of them had many other responsibilities in their jobs, but their commitment to devoting substantial time to bringing judicial vacancies down was indispensable to solving the crisis.
(5) Creative but sparing use of unrestricted seats. Only half of the Superior Court seats in each county are “restricted” to residents of that county, while the other half of the seats are “unrestricted” and technically can be filled by anyone in the state. Nonetheless, even most unrestricted seats end up going to residents of the county, as Senators want to make sure that in-county candidates are prioritized and familiarity with the county and the community is undoubtedly a positive attribute to bring to a particular vicinage. However, there are times when a logjam emerges and the only way to break it is to creatively make use of the flexibility afforded by an unrestricted seat. Identifying and utilizing those opportunities can be hugely important to keeping the process moving.
Leaving office with only 11 Superior Court vacancies is another major victory for Governor Murphy, chief of staff Tim Hillmann, and chief counsel Kate McDonnell, but it is a more significant victory for the people of our state who depend on our courts to be fully staffed. I know that Governor-elect Sherrill and her team will continue to fill judicial vacancies swiftly. Under her leadership, in this area and so many others, New Jersey will continue to be a welcome contrast to our dysfunctional capital.
Originally published by New Jersey Globe.
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