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Kevin J. O'Toole, the chairman of the Port Authority of New York and New Jersey, is a former New Jersey State Senator. (Photo: Kevin J. O'Toole.)

The O’Toole Chronicles: Let judges be judges

By Kevin O'Toole, November 13 2020 12:37 pm

Let judges be judges, and let the true independence of the judiciary be written in stone or law, for both political parties to uphold.

I previously wrote a column about how someone becomes a judge, today I want to take a moment and talk about the reappointment process.

Let us think about this for a minute – almost as if they are now in the witness protection program, upon the moment judges are sworn in, they are asked to sever every business relation, in many circumstances walk away from a lucrative legal career, put distance between themselves and some friends (and in some cases family members). They are told to adopt a much more confined and defined life from their previous one, and take on the role of the perfect and independent judge. Seems like a lot to ask of anyone—the word monk or monastic living comes to mind.

This sacrifice is embedded in the New Jersey Constitution – a judge is nominated by the Governor, vetted and voted on by the Senate Judiciary Committee, and ultimately voted on by all 40 State Senators. This initial appointment is for 7 years and the second appointment is considered a lifetime appointment. In order for this second term to begin to run, the judge must be re-nominated by the Governor and again voted on by the Senate. Ask any non-tenured judge in a private moment of honesty and they will tell how many days, minutes and seconds that they have left until their reappointment date.

As a former Senator who was quite active on the Senate Judiciary Committee, I used much of my time on the Committee advocating for nominees and sitting judges who truly deserved the title.
Over the years, I found myself in the epi-center of many a scrum, fighting hard for non-tenured judges who faced a rocky road for “lifetime” tenure. I do not have enough fingers on my two hands to count how many judges I fought to save from a disastrous ending. I recall firefights that I partook in to defend a beleaguered judge who was under attack from unhappy litigants or a hostile Senator or two. Essex, Passaic, Bergen, Hudson, Morris, Somerset, Union, Mercer, Middlesex, Monmouth and Burlington are but a few of the home counties of sitting judges I engaged to save during the difficult reappointment process.

It needs to be understood that most cases of reappointment sail smoothly into the night. However, there are times that a troubling record of behavior or consistent pattern of reversed decisions sets in motion a less than routine committee hearing. Even in these cases, the sitting judge is nominated and their record is reviewed by the Senate.

There is one other type of reappointment where politics makes a cameo appearance and intrudes upon this process. On rare occasion, a senator or someone from the executive branch may see fit to interrupt or interfere with the confirmation process—I found those circumstances the most fun to expose and pivot from.

On to the actual process. As I have written in the past, Judiciary Chair Senator Nicholas Scutari runs a very fair and effective committee. While I have waged war in that committee many a time, Senator Scutari always (save one exception that we will save for another day) allowed me free range to make my case for or against a person or cause. I took full advantage of this privilege.

Nick, known for giving his colleagues on either side great latitude in their questioning, allowed every Senator the right to examine and question any nominee. I submit to the reader that unless you sat in one of those overstuffed Senator chairs and engaged in the thorough review of candidates, including a personal interview before the actual committee, you probably do not or will not totally understand the nuances and ramifications of the hearing. Unless you had judgment with a voice or vote, it is hard to comprehend the weight of that process.

As a Senator on the Judiciary Committee, when confronted with a problem or unpopular nominee, the easiest thing to do politically was nothing; the hardest was to roll up your sleeves, review the entire record, and get down to the truth. That is exactly what I did with staff to make sure that every fact was uncovered and every litigant and nominee had their day to be heard. I would never let “optics” or “hearsay” govern the lives of hardworking sitting judges. Isn’t that the foundation of our jurisprudence? For that that matter, is that not one of the cornerstones of our democracy?

It needs to be understood that judges make thousands of significant decisions in a lifetime. My experience has shown me that first term judges, particularly in family court, find themselves making very difficult decisions regarding alimony, divorce, juvenile crime, assaults and other emotionally charged events, none of which is easy. Let us assume that no one judge is perfect—a mistake can be made. While we understand the high volatility and stakes of litigation, we all operate in a world where mistakes do happen. Are we to hold judges to a level of infallibility we do not hold ourselves to? Do we hold any other occupation to that strict of a standard? Are elected and appointed officials held to that same exacting and perfect standard?

Do not get me wrong—when faced with a questionable decision or fact, the Senators and the political process should question and hold every judge and nominee accountable. I have long operated under the notion that people have to answer for their actions. Regarding some higher profile reappointments, if the media or politicians have prejudged a case, or politics somehow seeps into the process, mayhem is unleashed.

Throughout my 30 plus years as a lawyer, I have been on my feet in front of quite a few judges, most are excellent, some decent, and a handful with limited utility, but rarely is there a judge that is not qualified to wear the robe. In the rare instance where a judge is behaving poorly (all of these are real), say like growing a pot plant in chambers, sexually harassing a clerk, screaming indiscriminately at lawyers, staff and litigants, or has a profound prejudice—removal or vote against tenure is proper, appropriate and necessary.

One needs to only review the notes from the Constitutional Convention of 1947, which established our present day judicial system, to recognize that this branch of government was intentionally designed to be independent and more “pure” than the other branches. Most importantly, it was to be free from the “scourge” of politics.

Recently, there was a period where the annual State Bar Convention conducted a panel on judicial independence – three years in a row! I was asked to participate every year, and the takeaway every year was that our system of advice and consent was far better than elected judges, and that our re-examining of a judge after 7 years was the most fair. However, no one on that panel, which included distinguished retired judges (state and federal) or legal scholars from across the country, felt that judges were infallible or should be denied tenure without considering the totality of their record, service or demeanor.

I have heard much over the last few years about the sanctity of the independence of the judiciary. Senators must be mindful of this standard and if there is ever a deviation or lapse, people need to be held accountable. Independence of the judiciary is not a campaign slogan or a bumper sticker, it is bedrock belief that we must fervently hold on to and live by.

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