N.J. Constitutional Convention: Vol. 4, Page 642


Part II


Methods of Selection

or Acting Chief Justice of the Supreme Court, a presiding judge of a district court of appeals and the Attorney General. At the expiration of any regular or ad interim term the judge's redesignation for another term is submitted to the people at an election.

It will be noted that except for Missouri, California, South Carolina and Delaware, every state whose most recent constitutional revision dates since the Civil War, has provided for popular election of the judiciary. Gubernatorial appointment is substantially limited to certain of the northeastern states which early inherited the tradition of the governor, standing in the position of nominee of the Crown, selecting the judiciary. Most of such states have never revised their judiciary articles since pre-Civil War days. The State of New York is a conspicuous example of a northeastern state which broke away from that tradition in favor of returning to the people the selection of the members of the judicial branch of the government, consistently with the popular election of the executive and legislative branches.

Numerous attempts have been made in New York to modify the provision for an elective judiciary which was first made by its Constitution of 1846, but no change was ever effectuated. The closest approach to a change was the decision of the Constitutional Convention of 1867 to submit at a referendum of the people in 1873 the question as to whether election should be supplanted by gubernatorial appointment. At the election the people voted to retain the elective system, by a vote of three to one (see Studies of New York State Constitutional Convention Committee of 1938, Vol. IX, p. 113).

Notwithstanding the predominance of popular election as a method for the selection of the judiciary, advocates of gubernatorial appointment assert the view that popular election almost always necessarily means political control. They further point to such cases as the recent instance in New York where a justice of the Supreme Court was elected notwithstanding public disclosure, prior to the election, of his admission of allegiance and obligation for his nomination to persons of unsavory reputation. There is moreover, a recent instance of a distinguished midwestern judge who was defeated for reelection. This viewpoint further asserts that governors occasionally make independent appointments of exceptionally qualified and politically unaffiliated lawyers to judicial office, men of a type who may not care for the rough and tumble of popular election campaigns.

On the other hand, the system of Senate confirmation of appointments has been criticized as productive of such evils as failure to act indefinitely on appointments at the instigation of the home-county senator, the frequent delegation, in effect, of the appointing

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