N.J. Constitutional Convention: Vol. 4, Page 311
we had - not in recent years - but didn't we have a very sad experience in the Legal Tender Cases because of mental disability and the persistence of a judge mentally unable to continue in office?
JUDGE SMITH: Oh, I agree some method should be set up, and definitely set up, and perhaps it should be within your court of highest jurisdiction to remove a man because of disability. It shouldn't be left to whim or fancy, but I think upon satisfactory evidence being presented, a man should be compelled to retire either because of physical or mental disability. Now, a physical disability which so incapacitated him as to prevent his carrying out his share of the work - assuming there is more than one judge, or take a busy calendar - the physical incapacity of a judge should be sufficient to remove him because his physical incapacity will very often result in an injury to litigants because of his inability to carry out his work. There again it shouldn't be mental only; it should be physical as well, because if his physical ability is such that he cannot function, that he can try only a certain number of cases in a given period of time, then he should go, because he does an injustice by the delay occasioned merely because of his physical disability.
I agree that some method should be had for removal, but here again, should the method be embodied in the Constitution, except to the extent that it would be necessary to vest in the court of highest jurisdiction such authority? In other words, an amendment itself could be worked out.
MR. WINNE: It is in there now, but only by impeachment.
JUDGE SMITH: Yes, but the means of carrying it through should be legislated. The authority to do it might well be constitutional, but there is a difference between authority to do certain things and the means of doing it. The means of doing it are merely procedural, and procedural steps in anything should have no place in a constitution, in my judgment.
VICE-CHAIRMAN: Should the rule-making power be left to the court or to the Legislature - thinking in terms of a constitution vesting in somebody the ultimate rule-making power to govern procedure? In federal practice Congress retains it, although it has delegated it to the Supreme Court. Is that system in accord with your recommendations?
JUDGE SMITH: Well, I have had some experience, not only in administering the rules, but originally in doing some work on various phases of both the civil and criminal rules as we apply them in our court.
Dr. Jacobs presents a question which has always presented itself, and it's a legal question in the first place. There were some who doubted an adequate jurisdiction or sufficient jurisdiction in the court to promulgate anything but the simplest rules, rules that wouldn't seem to effect any drastic change. I think Congress was
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