Posted June 1, 2007

In Trenton this week…Governor Corzine is expected to nominate Attorney General Stuart Rabner to serve as the next Chief Justice of the New Jersey Supreme Court. If confirmed, the 46-year old Rabner would replace current Chief Justice James R. Zazzali, who will reach the mandatory retirement age of 70 on June 17th. To fill the vacancy that would result in the Attorney General’s office by Rabner’s departure, sources indicate that Corzine will promote first assistant attorney general Anne Milgram to the A.G. position.

According to New Jersey law, once the Governor submits a nomination, it remains for the State Senate to confirm the nominee for a first term of seven years, following which the governor may choose to reappoint the justice. Upon being reappointed, the justice gains tenure and may remain on the bench until reaching the mandatory retirement age.

Senate confirmation requires a simple majority, or 21 votes. The Senate breakdown currently stands at 22 Democrats and 18 Republicans, and Senators from both sides of the aisle believe Rabner would be easily confirmed.

Since taking office in January of 2006, Governor Corzine has made two other Supreme Court appointments (discounting reappointments). When Whitman appointee and former Chief Justice Deborah Poritz reached the mandatory retirement age last year, Corzine elevated Zazzali to the bench’s top seat and then named Superior Court Judge Helen Hoens to take Zazzali’s place.

While the public seems to be paying little attention to this judicial reorganization, the nature of New Jersey’s system of executive appointment and judicial power should impel us to watch closely what happens over the next few days and weeks. In many states, judges, including State Supreme Court judges, are elected to their posts by the people and are thus accountable to the people. Under the New Jersey Constitution, however, the Governor maintains the power of appointment over all judges in the state, including those whose seat of influence is the in the state’s highest court.

According to a 2001 report of the New Jersey State Bar Association (Improving the Judicial Selection Process, May, 2001, available here), our state’s Constitutional selection process is “strongly subject to the influences of individual political officials.” The report continues, “This results from the constitutional powers of the governor and the senate over judicial appointments, the derivative practice of senatorial courtesy, and the absence of formal procedures for merit-based review of candidates in the early stages of the selection process.”

We’ve seen all too often instances of both our state and national Supreme Courts – with members appointed by both sides of the aisle – assuming non-Constitutional power and legislating from the bench. And with such landmark issues as civil unions and same-sex marriage coming before the New Jersey Court, it is imperative that our justices remain true to their purpose to interpret the law objectively and not seek to create legal precedent where none exists.

To this end, we will watch closely the events of the next days and weeks, and we will continue to hold our elected and appointed officials accountable for their actions and decisions.

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