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Donald Scarinci, founding partner of Scarinci Hollenbeck. (Photo: Donald Scarinci.)

Scarinci: Time to End the Senatorial Courtesy ‘Quid Pro Quo’

By Donald Scarinci, October 17 2022 8:39 pm

The New Jersey Supreme Court started its 2022-2023 term with three vacancies. While the 18-month stalemate over the nomination of Rachel Wainer Apter is now over, the practice of senatorial courtesy raises serious questions.  How can the same Senate that considers certain political contributions a criminal quid pro quo ignores the “negotiation” that occurs between individual State Senators and prospective judges in their districts?

New Jersey’s Judicial Nomination Process

Under New Jersey’s judicial selection laws, the governor appoints all judges in New Jersey. Judicial appointees must then be vetted and approved by the state senate. Judges are eligible for tenure after seven years in office. Once reappointed, they serve until they reach the age of 70.

While these rules may seem clear-cut, it is the unwritten rules that often generate the most controversy. For instance, under the practice of senatorial courtesy, state senators have the power to block judicial appointments from their home districts. As a professional courtesy, other senators will not confirm a judicial candidate unless the senators from the home district have voiced their approval.

Although not required by New Jersey public law, the state’s courts are also politically balanced. Governors of both parties have generally followed the tradition of replacing outgoing judges with someone of the same party or political ideology, i.e., liberal or conservative. The New Jersey Supreme Court is traditionally comprised of three Democrats and three Republicans, with the chief justice belonging to the party of the appointing governor.

Agreement on Partisan Balance

The practice of senatorial courtesy and political balance recently caused controversy when State Sen. Holly Schepisi (R-River Edge) refused to sign off on the nomination of Wainer Apter, who resides in her district. Gov. Phil Murphy first nominated Wainer Apter, the director of the state Division of Civil Rights, on March 15, 2021. However, Schepisi blocked the nomination until a few weeks ago.

Schepisi finally released the nomination when Gov. Murphy made assurances that he would preserve the New Jersey Supreme Court’s partisan balance. Under their agreement, Murphy nominated Superior Court Judge Douglas M. Fasciale (a Republican) to fill the seat of Justice Faustino Fernandez-Vina, who reached the mandatory retirement age of 70.

Assuming that Wainer Apter and Fasciale are confirmed, there is still one additional vacancy on the New Jersey Supreme Court, which is the result of Justice Barry Albin’s retirement this summer. The likelihood that the seat will be filled quickly is uncertain. However, word that Associate Justice Lee A. Solomon is contemplating leaving the bench before reaching mandatory retirement age in two years creates a scenario where a “Republican” and “Democrat” seat would both be open, which could help facilitate an agreement.

Future of Senatorial Courtesy

A number of issues have contributed to New Jersey’s historically high number of judicial vacancies, including an influx of judges reaching mandatory retirement, delays caused by the COVID-19 pandemic, and the introduction of a new Senate President. Nonetheless, the continued relevance and legality of senatorial courtesy warrants review.

While negotiation between the majority and the minority in the State Senate creates a healthy, good government dialog, purely personal asks by individual Senators in exchange for their vote is another matter.  Many would call this a criminal quid pro quo.  Someday, history and custom may not be enough for a prosecutor or a US Attorney to allow Senatorial Courtesy to continue.  The Senate should address it before that day comes.

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