In the wake of Governor Christie’s decisions not to reappoint Justices Wallace and Hoens, the New Jersey State Bar Association convened a Task Force to study judicial independence. The Task Force was co-chaired by Judges Wefing and Gallipoli, and its members included practitioners, law professors, retired jurists, and members of the public. The Report of the New Jersey State Bar Association Task Force on Judicial Independence, dated May 2015, has now been issued, in time for the NJSBA’s upcoming Annual Meeting. Though the report covers a number of different areas, including the process for appointing Superior Court judges, senatorial courtesy, salary and pension issues, and other matters, of particular interest are the Task Force’s conclusions regarding the appointment of Supreme Court Justices.
The Task Force considered and rejected the ideas of lifetime appointment and a single 14-year term for Supreme Court Justices. The former idea offers no easy way to remove a jurist who does not perform at an adequate level, while the latter “might well discourage highly qualified individuals from accepting nomination.” The Task Force also observed that although the majority of Justices since 1947 have served less than fourteen years, “some of those who were responsible for some of the Court’s landmark decisions had, in fact, served longer than fourteen years.”
Also considered, in connection with the fourteen-year term limit, was the suggestion that the terms be staggered so that one Justice would be appointed every two years. That would ensure that every governor had the opportunity to appoint Justices and would potentially “lessen the pressure with respect to any one particular appointment.” A downside, however, would be the disruption of the cohesion of the Court, as Justices came and went every two years. The idea of staggered terms did not win the day for the term limit concept.
The NJSBA supported a “presumption of reappointment,” especially after the controversies over Justices Wallace and Hoens, and the Task Force addressed the idea of such a presumption. Some other jurisdictions, such as Connecticut, have a presumption of reappointment. Adding that in New Jersey, however, would require a constitutional amendment.
Despite the NJSBA’s view, and “despite agreement with the substantive standard for reappointment it supports,” the Task Force did not endorse such an amendment. It was unclear whether a governor’s decision not to reappoint a Justice would create a justiciable issue, and if it did, the Task Force would view that as “highly undesirable” and fraught with procedural issues. Moreover, a presumption of reappointment “could have the effect of forever marking an individual who did not receive a reappointment, making it difficult for that individual to resume a professional legal career.” That possibility might lead such an individual to “seek out interest groups to lobby for his or her reappointment,” which would not further justice or judicial independence.
Those are the highlights relating to Supreme Court appointments. The entire report is well worth reading, as it contains numerous recommendations, including strong statements against electing rather than appointing judges. It is certainly possible to disagree with some of the Task Force’s conclusions regarding the Supreme Court appointment process, but the Task Force has produced a thoughtful document that, at a minimum, is a basis for further discussion.