New Jersey judges are currently appointed for initial seven-year terms. At the end of this period, a judge’s appointment is reviewed by the Governor and the State Senate with an eye toward determining whether they should be reappointed with tenure, which would guarantee the security of their position until they reach the mandatory retirement age of 70. The current administration has used this framework to construct a judiciary that reflects its own policies. Judges who issue decisions during their initial seven-year term that are not in tandem with the administration’s views and choices stand a good chance of being denied tenure, which results in their removal from the bench. Many New Jersey judges and lawyers have voiced concerns over the facts that such actions rob judges of the independence that is requisite to a court system that functions properly and fairly, and helps deliver justice to the State’s citizens.
One example that has remained with me for some time illustrates the point. A number of years ago, much closer in time to when the current regime came to power, a non-tenured criminal judge rendered a decision in a case that was favorable to the defendant, who was a sex offender. The judge was not simply trying to be “nice” to the defendant; rather, he did exactly what the relevant statute required in that case and under those circumstances. Put somewhat differently, he simply did his job. Nevertheless, he was subsequently denied tenure, apparently because of this decision.
But it does not end in the State’s trial courts. Two New Jersey Supreme Court justices, one Democrat and one Republican, have been denied tenure. It’s pretty clear that this occurred because the current administration view the New Jersey Supreme Court as an “activist” court with judges that “legislate from the bench”. The debate over the administration’s efforts to remake the Supreme Court in its own image has taken on added prominence recently since the Chief Justice is completing his initial seven-year term and is up for reappointment. Failing to reappoint a sitting Chief Justice would be virtually unheard of, even in a State with politics as colorful as New Jersey, but it is conceivable given the administration’s actions in this area.
The administration’s actions are nothing less than a full frontal assault on the constitutional rights of each and every New Jersey citizen. Judges who fear denial of tenure because of issuing decision that may anger politicians in Trenton completely lack the independence necessary to review the facts and the law of any particular matter, and then render a just decision that is consistent with applicable constitutional provisions, statutes, and prior cases. At that point, they become political pawns that function purely to rubber-stamp Trenton’s policies. This is certainly not in keeping with the system of checks and balances that the framers of the Federal Constitution envisioned, and which has been followed by the different States.
As a result, many judges, lawyers, and the State bar association are backing a Constitutional amendment that would deny the Governor and the Senate the power to refuse to reappoint a non-tenured judge unless the judge was found “unfit” to serve. In reality, the likelihood of such an amendment being passed in the current political climate is not great; however, it certainly is necessary given the current administration’s ongoing campaign to rob the judiciary of its independence and remake it into a personal tool for promoting a political agenda. If the proposed amendment really makes it through the process and we as individual citizens are given the opportunity to voice our opinion on this important issue, we should vote in favor of the amendment because of the manner in which it would help protect some of our most basic rights.