New Jersey: State bar plus 20+ county bars want automatic reappointment of judges, but no bill introduced; plan similar to ones in Hawaii and Vermont

With concern growing that Governor Chris Christie will not reappoint Chief Justice Stuart Rabner when his current term 7-year term comes up in June, news reports indicate that the State Bar of New Jersey along with “20 or 21” county bars have backed a proposal to change the constitution to, in effect, require governors reappoint judges. Despite the endorsements, however, there’s no indication that such a plan has even been introduced.

First, some background.

Since a 1947 constitutional revision rewrote the state’s judiciary article, New Jersey has operated under a modified federal system for appointment to the state’s top courts (Supreme, Appellate Division of the Superior Court, and Superior Court) where governors appoint and the senate confirms any qualified person for an initial term of 7 years. After 7 years the governor reappoints and the senate reconfirms the person to serve until age 70.

The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior…Such justices and judges shall be retired upon attaining the age of 70 years.

Reappointment was effectively automatic until Governor Christie ended the practice by declining to reappoint several members of the state’s Supreme Court and potentially Chief Justice Rabner.

The key change sought by the bars would make reappointment an automatic process unless it could demonstrate the judge in question was unfit.

The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of seven years. They shall be reappointed by the Governor, with the advice and consent of the Senate, unless they have demonstrated unfitness for such reappointment, and upon reappointment shall hold office during good behavior.

However as recent news reports indicate no member of the legislature has in fact introduced such a proposal.

There are two states that have a similar automatic-reappointment provision in their respective constitutions.

Hawaii: The state’s Governor (or Chief Justice for District Court) is responsible for appointment for a judge’s initial term from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3)

Vermont: For judges of the state’s Supreme and Superior Courts, the Governor makes an appointment subject to Senate confirmation. For subsequent terms, however, the Governor plays no role. Instead, judges submit their names to the legislature where they are vetted by a Joint Committee on Judicial Retention. The judge is automatically reconfirmed “unless a majority of the members of the General Assembly voting on the question vote against continuation in office” (emphasis added, Vermont Constitution § 34 and 4 V.S.A. § 607 & 608)