N.J. Constitutional Convention: Vol. 4, Page 307

Tuesday, July 8, 1947 (Morning session)

I think if he doesn't, there should be some power in the chief court that would permit them to determine -

MR. WINNE: You don't have that in the federal system?

JUDGE SMITH: We don't.

MR. WINNE: The only thing in the federal system in the case of a judge who is incompetent and he refuses to retire for old age, drunkenness or anything, is to impeach him, and that, of course, is wrong. There ought to be some method -


MR. WINNE: Now, I think everybody is sympathetic with the tenure idea. Do you think there is any advantage in having a probationary period before tenure, of, say, seven years and then tenure on reappointment, to find out if the gentleman has the temperament that he needs to qualify for a judgeship? We all know of estimable lawyers who, upon being appointed, had characteristics which, had they been known, would not have resulted in his appointment.

JUDGE SMITH: Mr. Winne, I am glad you asked that question. If you are looking for judges who are free of outside influence, the worst thing to do to your court would be to put a man on the bench on the theory that he is there for a probationary period, at the end of which time he must satisfy certain people who were responsible for his appointment. If there is anything that -

MR. WINNE: He wouldn't satisfy the people who were responsible; he would satisfy the person who is responsible for his reappointment. Say, one term of seven years; there would be a different Governor, and then if he were reappointed he would have tenure.

JUDGE SMITH: And during that period of time, if the man were interested in his reappointment he would be consciously or unconsciously influenced by factors that should never influence any judge.

MR. WINNE: Not to any greater extent than today, because today every man comes up for reappointment.

JUDGE SMITH: I understand that, but this probation is definitely conducive to that sort of thing, because he knows that at the end of five or seven years he is going to have to look to certain people for his reappointment.

MR. WINNE: I am not arguing the thing with you -

JUDGE SMITH: Of course, Mr. Winne, most of our legislators are lawyers.

MR. WINNE: From your own statement, if the condition is that a man has to look for reappointment, he would make a bad judge. Then everybody in New Jersey must be a bad judge, because everybody in New Jersey has to look for reappointment.

JUDGE SMITH: No, that isn't true.

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