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N.J. Bar Association weighs lawsuit to fill judicial vacancies

by Nikita Biryukov, New Jersey Monitor

The New Jersey State Bar Association is engaging constitutional scholars as it considers a lawsuit to force lawmakers to fill an unprecedented number of judicial vacancies that have entirely stopped certain types of trials in most of New Jersey’s counties.

The bar has not decided yet whether it will pursue the suit, and it is still pursuing other, more diplomatic solutions to resolve logjams that have swollen the number of court vacancies to 67, Jeralyn Lawrence, the association’s president, said in an interview.

“This is not a new problem, unfortunately, but now too much time has passed, and with it being neglected for as long as it’s been neglected, we’re now in an unprecedented, catastrophic place,” Lawrence said.

New Jersey’s court vacancies swelled amid the pandemic, forcing numerous counties to delay certain types of trials — or cancel them altogether — to continue hearing priority cases in criminal, family, and domestic violence matters.

As a result, divorce proceedings aren’t moving in 16 counties, and one of those counties does not even have a divorce judge, Lawrence said. New Jersey Supreme Court Chief Justice Stuart Rabner in May said civil rights, whistleblower, product liability, and environmental matters, among others, had been indefinitely postponed in some counties.

“It’s at the point of absurdity, really,” Lawrence said. “Children are being harmed. Families are being harmed.”

Sen. Brian Stack (D-Hudson), chair of the chamber’s judiciary committee, on Monday told the New Jersey Monitor his panel and the full Senate would make a rare return to Trenton during their customary summer break to confirm new judges.

While Lawrence viewed that announcement as a positive, she said in an interview she fears the Legislature would continue confirming judges at a pace too slow to keep up with pending retirements.

The Senate has confirmed 15 new judges since the new legislative session began in January, and three judges whose nominations were advanced by the Senate Judiciary Committee on Monday are likely to be confirmed when the full chamber convenes next week.

If lawmakers continue at that pace, they’re unlikely to bring the number of vacancies down to between 25 and 30, a level Rabner considers sustainable.

Lawrence lauded the panel’s plan to meet in the summer but said the bench’s potential gains would be wiped out by the seven judicial retirements expected in July and August.

“They’re acting in little drips and drabs, but nothing as swiftly or with the magnitude that we need to see,” Lawrence said. “Filling any spot makes you feel better, but it’s like a drop in the ocean. It’s like one bite of the elephant here.”

The New Jersey State Bar Association is still pursuing diplomatic solutions, Lawrence said, including one where the association would mediate a meeting between legislators and the governor’s office to overcome logjams that threaten the courts.

The state Supreme Court’s permanent cohort is set to fall to four when Justice Barry Albin turns 70, the mandatory retirement age, on July 7. Murphy has made a nomination to only one of the vacancies.

The nomination of Rachel Wainer Apter, director of the New Jersey Division on Civil Rights, has been stalled since last March because Sen. Holly Schepisi (R-Bergen) has used senatorial courtesy to block the nomination. The unwritten rule allows senators to halt the advance of nominees from their home counties or legislative districts.

“How do you have three Supreme Court vacancies looming and the governor only appoints one person, which we all know there’s a problem with that person from the senatorial courtesy perspective,” Lawrence said. “We know that’s not going to be an easy confirmation. What’s happening with the other two? They’re just going to sit vacant?”

Schepisi has expressed concern that Murphy’s nominee to the high court would replace an independent judge with a Democrat. The state’s governors have largely maintained a partisan balance on the seven-member Supreme Court.

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