N.J. Constitutional Convention: Vol. 4, Page 582


NEW JERSEY COMMITTEE FOR CONSTITUTIONAL REVISION

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


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

plished in the proposed draft through the reduction in the number of separate appointments and the increase in the independence of appointees resulting from complete unification of the courts, with all judges appointed for full-time, long-term service; and through the check of the Judicial Council on any tendency of a Governor to nominate judges on a purely political or personal basis.

Note on the Schedule

We have not attempted to write a Schedule applying to the Judicial Department because that would depend in part upon decisions made on the rest of the Constitution, and a good deal of detail in the Schedule would flow necessarily from the content of the Article itself. We merely want to call attention to two points which we think it is important to bear in mind in writing the Schedule:

  • (1) It is important to avoid language such as is found in the Schedule of the present New Jersey Constitution which might be held to freeze existing jurisdictional concepts into the new court system. Presumably the Schedule would transfer the jurisdiction of the existing courts in toto to the Judicial Department, subject to immediate assignment according to the provisions of the Constitution and law or rule, and subject in general to future legislation.  
  • (2) Care must be taken in providing for the placing of existing judges in the new court system to avoid any unnecessary political repercussions. This probably means that some place should be found for every judge to fill out his present term, with the possible exception of non-lawyer members of the Court of Errors and Appeals, who might be taken care of in some other way if necessary.  

It is especially important to avoid the political error made in 1944 of providing that the Governor in office when the new Constitution takes effect shall name all of the members of the new Supreme Court for life terms. The 1944 draft was open to the charge that it gave the Governor a chance to "pack" the Supreme Court for years to come. Perhaps a still more serious objection to such a provision is that unless the Governor were careful to appoint men of a variety of ages, it might automatically result in a Supreme Court composed of men who would all retire about the same time, thus giving an occasional Governor many appointments and intervening Governors few or none. Of course, the partisan objections would be greatly mitigated by establishment of the Judicial Council, but the political objection of a higher order would still remain. The undesirability of bunching the appointment of a majority of the members of the Supreme Court of the United States in a short period has been demonstrated by recent history. We suggest, therefore, that no matter what terms may be given to Supreme Court Justices in the future, all initial appointments to the Supreme Court shall be to fill the unexpired terms of the persons appointed.


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