Judiciary Committee continues to eat judicial vacancy elephant one bite at a time

With 70 openings in New Jersey’s Superior Court system and some vicinages having to limit trials due to vacancies, the Senate Judiciary Committee took the tiniest of steps towards addressing the crisis today, approving four new Superior Court nominees and the reappointments of eight sitting judges.

The four nominees approved today were John Ducey, Gavin Handwerker, Chanel Hudson, and Susanne Lavelle, all of whom are likely to sail through the full Senate for confirmation next Monday. The committee also cleared one nominee to the Workers’ Compensation Court, Thomas Smith.

Lavelle’s appearance before the committee is notable because it involved getting senatorial courtesy from State Sen. Sandra Cunningham (D-Jersey City), who has been out of commission for months due to cognitive health issues. Ducey, meanwhile, is the Democratic mayor of Brick Township, and his move to the judiciary will trigger a competitive special election for his seat.

In total, the Superior Court system has 463 judicial positions, meaning that the current vacancy rate is around 15%. There are only 19 nominations still pending, so the bulk of the responsibility lies not with the Judiciary Committee for failing to act quickly on nominees, but with Gov. Phil Murphy for failing to nominate anyone at all.

“It’s not really the Senate, it’s the governor’s office that’s vetting and looking at candidates,” Judiciary Committee Chair Brian Stack (D-Union City) said after today’s committee hearing. “We’re willing to hold a meeting a week if we have to, to catch up with the backlog.”

Murphy’s administration has made some significant progress in the last month, putting forward a package of nine judicial nominees in late January and naming another six nominees in early February.

Not including the four judges likely to be confirmed next week, the Senate has confirmed 39 new Superior Court judges since the beginning of this legislative session. Two new members of the Supreme Court – Justices Rachel Wainer Apter and Douglas Fasciale – also moved through the Senate last year after a long delay.

One seat on the seven-member Supreme Court remains unfilled, however: that of former Justice Barry Albin, who turned 70 last summer (and who has been temporarily replaced with an interim Supreme Court justice). Murphy said last month that he had “no news to make” on the status of Albin’s replacement, and Stack said today that there hasn’t been any recent movement.

“We’ve been focused on the Superior Court right now and the other vacancies, and then looking at the Supreme Court,” Stack said.

The consequences of such vacancies, on both lower and higher courts, are very real. With fewer judges available, cases get stuck in massive backlogs, delaying justice for countless people across the state. In six counties – Cumberland, Gloucester, Hunterdon, Salem, Somerset, and Warren – civil and matrimonial trials have been suspended entirely.

Supreme Court Chief Justice Stuart Rabner, who made the decision to limit trials in those counties, has repeatedly exhorted the governor and legislature to address the problem.

“We recognize that when the doors of the courthouse are closed – even partially – people entitled to their day in court suffer real harm,” Rabner said. “We therefore respectfully call on the executive and legislative branches to address the current vacancy crisis.”

For outside observers, the impasse may seem strange. New Jersey has a Democratic governor and a Democratic State Senate; how can they not come to an agreement on clearing lower court judges? Superior Court nominees tend to sail through the Senate unanimously anyways, with Republicans peaceably voting for Democratic-affiliated judges and vice versa.

The problem, though, is getting judges nominated and before the Judiciary Committee at all, a behind-the-scenes process that can get tripped up in a number of different places.

In theory, the governor nominates whoever he thinks would make the best member of the judiciary. But in practice, many judicial nominees first come on the radar due to their connections to senators or other politicians, meaning that any given list of judicial nominees is the product of complex negotiations among the governor, members of the Senate, and other political power brokers.

Senators have quite a bit of leverage over the process thanks to the unwritten rule of senatorial courtesy, which allows them to block any nominee from their home county or legislative district. 

Nadia Kahf Alqudah, for example, was nominated to the Superior Court by Murphy in February 2022, but her nomination was held even though State Sen. Kristin Corrado (R-Totowa) signed off in October.  There may well be a number of other prospective judicial candidates who haven’t even been nominated because of preemptive opposition from senators.

There’s also the challenge of diversifying the court. Murphy has repeatedly made clear that making New Jersey’s judiciary more demographically reflective of the state is a priority for him, but that can come into conflict with other parts of the nomination balancing act.

For one, many potential nominees are more interested in pursuing other opportunities, limiting the pool of possible candidates. For another, the nominees preferred by state senators – a group that is significantly whiter and maler than New Jersey overall – are often less likely to fulfill the governor’s desire for a more diverse judiciary.

One partial fix to the problem would be to raise the mandatory judicial retirement age; the current limit of 70 was set way back in 1947, when the modern state constitution was approved. State Sen. Shirley Turner (D-Lawrence) has introduced a bill raising the age to 75, noting that people are now living longer lives and that the judiciary is already bringing back retired 70-plus judges on an interim basis.

“As they say, 70 is the new 60,” Turner told the New Jersey Monitor last month.

But even if Turner’s bill (which has made no progress through the legislature so far) were signed into law, the number of vacancies would still steadily mount, just at a slower rate. The only long-term solution is to nominate and confirm new judges – and to do so with more haste than the governor and legislature have displayed recently.

This story was updated at 8:52 a.m. on February 24 with a correction: there are 463 Superior Court judicial positions, not 433.