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State Sen. Nellie Pou (D-Paterson). (Photo: Kevin Sanders for the New Jersey Globe)

Pou, Scutari split on high court’s partisan balance

Judiciary chairman wants it to continue. Vice chair says it should be reexamined, but both back raising mandatory retirement age

By Nikita Biryukov, February 16 2021 5:39 pm

The chair and vice chair of the Senate Judiciary Committee are split on whether the state should continue to abide by its tradition of partisan balance on New Jersey’s Supreme Court.

Since New Jersey adopted its 1947 State Constitution, governors have maintained a partisan balance on the high court, with the governor’s party usually holding a one-seat advantage.

But New Jersey’s political landscape has changed drastically in the last 74 years. Republicans now account for just 22% of registered voters. Democrats make up about 39% of the voter pool, and there are over a million more of them in the state than there are Republicans.

In 1947, New Jersey was political competitive, but despite the shifts, State Sen. Nicholas Scutari (D-Linden), the Judiciary Committee chair, isn’t prepared to do away with the tradition.

“There’s plenty of very well qualified potential justices out there from all parties. I think it’ll probably continue,” he said of the tradition.

State Sen. Nellie Pou (D-Paterson), the committee’s vice chair, was more open to a review of the tradition.

“While I believe there is a clear and important exchange of opinions, ideas, ideologies to allow for representation that would avail itself in providing different viewpoints, I do think that given the change in our state’s population … it’s something that I think is worth continuing to examine and for us to consider,” she said.

Four of New Jersey’s Supreme Court justices will hit the mandatory retirement age of 70 in next gubernatorial term, and most of them fall on the Republican side.

Justice Barry Albin, perhaps the high court’s most liberal member, will turn 70 next July. Justice Faustino Fernandez-Vina will turn 70 sooner, on Feb. 15, 2022. Justices Lee Solomon and Jaynee LaVecchia will age out of the court in August, 2024, and October, 2024, respectively.

If Gov. Phil Murphy wins, the turnover will give him the opportunity to seek a broad Democratic majority on the court, though it’s not clear whether Scutari and Senate President Steve Sweeney (D-West Deptford) would allow such a move. Scutari, at the least, has indicated he wouldn’t.

The two judiciary Democrats did agree that it was perhaps time to raise the retirement age for judges.

“Our life expectancy is much longer than it used to be when the 1947 constitution mandated retirement at 70, so a couple more years I don’t think is problematic,” said Scutari, who last year introduced a constitutional amendment that would have allowed the Senate to approve justices and judges who would’ve aged out for additional two-year terms.

The National Center for Health Statistics pegged average life expectancy for American men in 1947 at 62 years. (A woman first got a seat on New Jersey’s Supreme Court in 1982.)

Today, that number’s risen to 76 years.

“I do believe at 70 you’re still young, still able to allow for great input in terms of our judicial system and many, many of our very well experienced and, in some cases, seasoned individuals that serve in the courts are able to continue to provide that service,” said Pou, adding “without question” that lawmakers should consider an increase to the retirement age.

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