Broad court vacancies remain despite swell of June confirmations

New Jersey lawmakers were on pace this year to appoint and reappoint more judges to the Superior Court bench than any administration since 1998, according to data from New Jersey’s Judiciary, but an extended break planned by lawmakers through November means the number of court vacancies will likely remain near record highs.

The number of vacant judgeships swelled to 66 last year after the pandemic waylaid much of the legislative process for months, but that slowdown came after the number of vacancies had already swollen to 47 at the end of 2020.

There were 51 empty judicial seats on July 1 of this year.

At the end of 2017, the last full year of Gov. Chris Christie’s tenure, that number was just nine after lawmakers added 63 new judges to the bench, the most for any year since at least 1998.

“The stars aligned,” Senate Judiciary Chairman Nicholas Scutari told the New Jersey Globe. “We were working cooperatively, and that’s necessary to get stuff like that done.”

That included 20 new judgeships created in January 2017 as part of a court expansion to handle bail reforms that took effect earlier that year.

But while Christie left the courts with as close to a full cohort as they’ve had since at least 2005, when just 14 spots on the bench were open, the number of vacancies swelled over the first three year’s of Gov. Phil Murphy’s first term in office.

The Democrat appointed just 25 new judges during his first three years in office. He added only one member to the bench in 2018. One Christie judge was confirmed in the 15 days he was in office that year.

By the end of 2018, the number of vacancies swelled to 35. It rose to 47 by December 2019 and to a staggering 66 at the start of this year.

A spokesperson for the governor declined to comment for this article.

There was more than one reason for the slowdown. Murphy’s relationship with the legislature was strained for his first two years in office. Relations were so acrid that the state government nearly shut down in 2018. Lawmakers avoided that after reaching a last-minute budget deal that was signed into law on July 1, one day after the budget deadline.

“The first year was a very difficult year because interactions between us and the administration, particular staffing issues — staffers — and also, it’s just a function of getting off the ground. You don’t know what you’re getting there.”

Friction between the front office, Scutari and Senate President Steve Sweeney (D-West Deptford) during those first two years didn’t help the process move along. When the two sides finally got over their growing pains, COVID-19 emerged as a new wrench in the gears.

“They didn’t know how to deal with me and Senate President Sweeney, so that slowed things down,” Scutari said. “And then just as we started to get together and work well together, then this thing hit — this pandemic hit — and that stopped everything.”

There are other complications in the nominating process. Senatorial courtesy, an unwritten but immovable rule, allows senators to indefinitely block nominees from their home county. They don’t need to provide an explanation.

What follows is often a daisy chain of deal making that frequently requires approval from multiple lawmakers in the upper chamber, each of whom have their chance to extract a pound of flesh — perhaps in the form of another nominee that starts sends the exercise back to square one.

Murphy in May said he backed keeping courtesy in place, though there certainly isn’t support for removing the practice in the legislature. It’s not likely 21 senators would support legislation curtailing their largest single source of power.

Judicial nominees must also win approval from the New Jersey State Bar Association. That requirement’s been in place since Gov. Richard J. Hughes first entered into a compact with the bar association in 1969.

Despite the hurdles, the Murphy administration still made moves on judges in its first three years. While new appointments were slower than they had been under any of the last four elected governors, 73 judges were granted tenure over that period.

Still, the 31 new Murphy judges confirmed this year were more than the governor put up in the first three years of his term combined. The 37 Superior Court judges appointed or reappointed between April and June of 2021 was the largest cohort approved over that time period dating back until at least 2014.

All of those 37 judges were confirmed in June, the most confirmations that month since at least 2014.

None of the figures in this article include workers compensation and administrative law judges. They aren’t part of the judiciary, belonging instead to the Department of Labor and Workforce Development and the Office of Administrative Law, respectively.

Other governors nominated far more judges during their first year. Former Gov. Jon Corzine put up eight new Judges. Gov. Jim McGreevey saw 24 of his judicial nominees confirmed in his first year. Christie put up 25 — one than the number confirmed during Murphy’s first three years in office.

It’s worth noting though, those governors had more vacancies to fill — 34 for Corzine and 45 for Christie.

The swell of progress, aided by Murphy chief of staff George Helmy and by Tim Hillman’s recent appointment as Murphy’s deputy chief of staff for intergovernmental affairs, comes just before lawmakers broke for the summer, and they’ll likely not return to the legislative process until after this year’s elections, which will see Murphy and all 120 seats in the legislature put up on the ballot.

Scutari said he would continue to work on vetting and screening judges for another confirmation push at the end of the year, but the break still threatens to balloon the number of vacancies.

“The next four months, regardless of whether we come back, it’s not like we’re going home,” he said. “I was in the office this morning. I’m at work every day, even if I’m not in the Capitol.”

But there are some mitigating factors. The administration is caught up on reappointment of judges whose terms expire before election day, so there won’t be a need for the legislature to return before then to give tenure to a single judge.

The lone exception is Union County Superior Court Judge Theresa Mullen, who the Advisory Committee on Judicial Conduct recommended be removed for multiple breaches of the judicial code over a dispute and lawsuit at her children’s school and will see her term expire this year.

She’s not being put up for tenure.

There are other avenues lawmakers can take to head off a swell in judicial retirements, like a proposal backed by Scutari to increase the judicial retirement age past 70, though those won’t move with the legislature on a four-month break.

“Now, I think we’re clicking on all cylinders,” Scutari said.