Home>Feature>(Updated) Appellate, assignment judges are mostly Democrats, despite tradition of partisan balance of N.J. courts

New Jersey Supreme Court Chief Justice Stuart Rabner. (Photo: Seton Hall University).

(Updated) Appellate, assignment judges are mostly Democrats, despite tradition of partisan balance of N.J. courts

Two-thirds of sitting assignment judges are Democrats, along with 63% of sitting appellate judges

By David Wildstein, July 11 2022 12:01 am

New Jersey has a Noah’s Ark system of appointing Superior Court judges, aspiring – although not always succeeding – for the courts to have a partisan balance with a relatively equal number of jurists from both parties.

But a review of party affiliations of sitting judges conducted by the New Jersey Globe shows that Chief Justice Stuart Rabner has been more likely to elevate Democrats than Republicans to the upper echelons of the judiciary, based on the political composition of active members of the judiciary.

Rabner, a Democrat, served as Gov. Jon Corzine’s chief counsel and attorney general before his nomination to lead the top court in 2007.  There is no evidence that he has pursued a long-term political agenda, just statistics that reflect the current judiciary in New Jersey.

Democrats occupy two-thirds of the influential assignment judge positions: 10 Democrats and 5 Republicans in the state’s fifteen Superior Court Vicinages, a 2-1 advantage for Democrats.

Of the 27 appellate court judges, 17 are Democrats, 9 are Republicans and one is unaffiliated, giving Democrats a 63%-33% edge.

Another Republican appellate judge, Carmen Alvarez, retired in March on full pension but remains on recall through the end of next month.

Three weeks ago, Rabner temporarily assigned three judges to the appellate division.  Two of them, Maritza Berdote-Byrne and Joseph Marczyk, are Republicans; Judge Avis Bishop-Thompson is a Democrat.

With Alvarez and the temporary appellate judges included in the count, the number goes to 18 Democrats and 12 Republicans.

Not all of the appellate judges were named by Rabner.  Jose Fuentes, Clarkson Fisher, Carmen Messano and Jack Sabatino, all Democrats, were elevated to the appellate division by Rabner’s predecessor, Deborah Poritz, a Republican.

Of the seven appellate court panels, which tend to have four judges assigned to each, four have Democratic majorities.  Two more are evenly split, and one panel, led by a judge who has no party affiliation, has two Republicans – one on recall – and a Democrat.

But of the other eighteen other now-retired appellate court judges named by Rabner, twelve were Republicans and six were Democrats.  Of the Republicans, two are now registered as Democrats and one has switched to unaffiliated.

The acting Administrative Director of the Courts, Glenn Grant, is also a Democrat.  Grant is effectively the chief operating officer of the courts; some call him the deputy chief justice.   The chief justice picks this post.

The Advisory Committee on Judicial Conduct, which is appointed by the Supreme Court to handle ethics complaints involving judges, has a seven Democrats, one Republican, and two members who are not affiliated with any political party.  That panel includes Matthew Boxer, a former state comptroller and assistant counsel to Corzine who has represented Gov. Phil Murphy’s administration, and a lay member, Karen Kessler,  a former Florio administration official whose public relations firm has represented law firms and a woman’s soccer team owned by Murphy.

Both redistricting tiebreakers – former Supreme Court Justice John E. Wallace, Jr. on congressional and former Appellate Court Judge Philip Carchman for legislative – are Democrats.  Wallace was picked by the full court in an election against a Republican candidate; Carchman was directly appointed by Rabner.  Rabner’s pick as the tiebreaker for Atlantic County Commissioner redistricting, former Superior Court Judge Georgia Curcio, is a former Republican who changed changed her voter registration to unaffiliated and has contributed to Democratic candidates in recent years.

Through a spokesman, Rabner declined comment on the partisan balance of appellate division and assignment judges.

The origin of the partisan balance of the judiciary comes out of tradition that began when New Jersey was politically competitive — and out of the realities that stem from the unwritten rule of senatorial courtesy that requires signoff from home county and home district state senators before a judicial nominee can be confirmed by the State Senate.

Once the governor nominates a judge and the Senate confirms him or her, it’s up to the Chief Justice alone to determine their fate.  Some judges rise to positions of greater influence or power within the judiciary, while others struggle to get the assignments they want.

The constitutional power of the chief justice of the New Jersey Supreme Court stems from an old-fashioned, Jersey-style political deal.

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.

As a result, Essex 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 named Vanderbilt as the first chief justice of the newly-constituted top court.

In New Jersey, governors nominate Supreme and Superior Court judges, and the State Senate confirms them.  Once a Superior Court Judge is sworn in, the State Constitution gives the chief justice the singular authority to make judicial assignments.  The entire appellate division is picked by the chief justice – something Vanderbilt had fought for.

After Supreme Court Justice Faustino Fernandez-Vina reached the mandatory retirement age of 70 in February, Rabner issued a statement referencing the partisan balance tradition, albeit in the context of the Supreme Court.

“Since the adoption of the 1947 Constitution, Governors have abided by the tradition that no more than four members of the Supreme Court can be affiliated with a single political party. In keeping with that valued tradition, I am not assigning an additional member of the Appellate Division to fill the vacancy created by Justice Fernandez-Vina’s mandatory retirement,” Rabner said.  “The Court will continue to operate with six members.”

The Supreme Court presently has two Democrats (Fabiana Pierre-Louis and Rabner) and two Republicans (Anne Patterson and Lee Solomon).

NEW JERSEY JUDICIARY LEADERSHIP BY POLITICAL PARTY

Editor’s Note: this story was updated at 8:26 PM on July 13 to clarify that the political composition is based on active appellate division judges and to include party identification of other Rabner appointees who are now retired.

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