N.J. Constitutional Convention: Vol. 4, Page 309

Tuesday, July 8, 1947 (Morning session)

expiration of that time he will depart. And he will take to his business a prestige which he didn't have before, which will bring him business that he would never have had, had it not been for the prestige of the judicial office which he had the privilege of holding.

MR. McGRATH: Judge, the man in the higher court, however, would probably in many cases come from the lower court, where we would probably know his ability and character.

JUDGE SMITH: Well, we haven't, even in the federal system, reached that stage where judges of the lower courts are promoted. It would probably be a better thing for a judicial system.

MR. McGRATH: But they would be older men, and if they retired at 70 they would have tenure anyhow.

JUDGE SMITH: Practically. There is one thing that occurs to me, and this again is by reason of what I read in the newspapers. There are some proponents of a change who seem to contemplate that the court system will be fixed or established in the constitutional amendment. It is my observation that the present difficulty with our court system arises from the fact that in the Constitution which you are now supplanting, or hope to supplant, the system was so firmly established that many courts became recognized as constitutional courts and you found yourselves, or at least the people found themselves, in a position where they could not readily change the system, the procedure, to meet the new demand.

If the Constitutional Convention again so firmly establishes the court system from top to bottom, you may in 25 years or 50 years again find yourselves in a position, or the people may find themselves in a position, where the system will not yield to change, and necessary change, because the Constitution will prohibit it. It shouldn't be necessary, when a change is necessary, to change the entire Constitution; yet it is my opinion that there are some who are fearful that unless they do there may be no change.

They have used the federal system as a model in some respects, but there again you will find that the federal system is predicated upon a very simple constitutional provision, and throughout the years the necessary changes were made by mere acts of Congress. The jurisdiction of the courts was enlarged where it was thought necessary. We have effected other changes - the integration, for example, of equity and law has been accomplished simply by the federal rules of procedure. Jurisdiction was always there, but the unitary operation of the system has been accomplished by mere rules of procedure promulgated by the Supreme Court and adopted by Congress, so it seems unnecessary - if the federal system is the model - it seems unnecessary to freeze into a constitutional amendment at this stage all the advantages that you now perceive in other systems, when the broadest and simplest system would be the best.

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