N.J. Constitutional Convention: Vol. 4, Page 509

Wednesday, July 30, 1947 (Morning session)

tion in my mind is this: Under what circumstances may the power of the Chief Justice to appoint temporary judges be exercised? The indefiniteness of this language, that this is to be done "as provided by the rules of the Supreme Court," could very well mean that some time in the future an unscrupulous Chief Justice might very well pack the court in a particular case. Why not provide in this paragraph the circumstances under which such temporary judges may be appointed and how long they may function? Other states have been able to do so, and have thereby resolved any doubts as to the right of the presiding justice to exercise a power which is not, strictly speaking, a proper judicial function. It belongs, more logically, in the Executive Department.

So, too, if a judge is to be called up from a lower court to sit in an appellate court, the Constitution should, as New York and other states have done, provide that this designation to temporary judicial office doesn't create a vacancy in his permanent position, nor does it in any other way affect his right to hold his permanent appointment. The judge so temporarily promoted, I think, is most certainly entitled to be so protected. It is no answer to say, "Of course, he'll be protected," because when we say that we are just guessing; we haven't any guaranty from any of the language in this Article that he will not lose his permanent office, or that his right to resume it will not be affected by the temporary appointment.

It seems to me that the language contained in Section II, paragraph 2 is rather indefinite. Since this is a new Constitution which, in effect, is going to throw overboard a great many things that have been settled by state court decisions during the last 103 years, we have to be extremely careful with the language in order that we may today have the right to form some legitimate conclusions as to just what this new document intends to do and just exactly what it means.

Parenthetically, I might say that in yesterday's paper I read that the Attorney-General has expressed some doubt about something as recent as the statute under which this Convention is existing. I think he said something about discussing with his assistants the right to do this certain thing that was proposed, and that they examined the statute and were fairly evenly divided. Now, if trained legal minds, such as make up the present Law Department of the State of New Jersey, can't make up their minds about such a simple thing as a clause in a statute which was passed just a few months ago, and want more time to study it, I think we have to be very careful about freezing into this Constitution language the effect of which isn't too clear or too plain.

It seems to me that the highest appellate court to be created un-

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