N.J. Constitutional Convention: Vol. 4, Page 581


Explanation of Draft of Proposed Judicial Article Recommended by the Committee1 See page 26 for draft of Judicial Article proposed.

5. Form of the Judiciary Article

on a firm basis, without binding either the department or the Legislature so as to hamper adaptation of the judicial system to changing needs and concepts. We rejected the simple expedient of following the Federal Constitution in establishing only a Supreme Court and leaving the inferior courts to legislation. Experience in this and other states makes it very doubtful if a state legislature can be counted on to develop and maintain an integrated judicial structure comparable to that in the Federal Government. In a government based upon the separation of powers principle, we see no reason why the essential features of all three departments should not be laid down in the Constitution. To fail to do this invites the Legislature so to weaken the other two departments as to vitiate the principle of balance which alone makes the separation of powers system workable. If the Legislature is left free to create inferior courts outside the General Court, it will be subject to all sorts of local political demands for the creation of unnecessary courts not properly integrated with the judicial structure as a whole. We doubt very much if a real Judicial Department would ever be developed on the basis of law alone.

Admittedly, there are a few details in the proposed draft which are not absolutely necessary to the establishment of the kind of Judicial Department that we have in mind. For example, it is probably unnecessary to spell out in as much detail as we have the administrative provisions in Section 6. We think it best to do so, however, because the concept of responsible administration in an integrated Judical Department is novel in New Jersey and it is important that the Constitution itself should give some indication of its essential principles and workability.

The Bearing of These Proposals on the Balance of Power in the State Government as a Whole

We have already suggested that we anticipate that these proposals would have a salutary effect on the balance of power in the State Government as a whole.

One of the things about the proposed revision that, rightly or wrongly, disturbs many people is the probable enhancement of the power of the Governor. It is pointed out that the New Jersey Governor is unusual in having the power to nominate all judges. The power has been confided to the Governor, not because it is necessary to the discharge of his responsibilities as Chief Executive; but because we have felt that popular election, or appointment by the Legislature or by a self-perpetuating Judicial Department itself, would be worse. There can be no question, however, of the desirability on many grounds, of cutting down the possibilities for patronage and personal politics inherent in the power of the Governor and Senate to appoint judges. This would be accom-

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