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In a recent (May 6, 2019) NJLJ op-ed article, a lawyer noted that he “heard that demographic characteristics influence judicial nominations.” He further explained that “most judicial nominations derive from political connections” and that they are “reinforced by political contributions.” He cites a 2017 article by state Sen. Kevin O'Toole as his source. He complains that the process permits substandard attorneys to ascend to the bench, and he suggests a qualifying test to assess the applicant's knowledge of the law, intellect and preparedness. This somewhat jaded view of the appointment process requires a brief answer from this board, which has several former members of the judiciary and practitioners intimately aware of the appointment process.

Yes, the process is political, in that the governor must nominate a prospective judge, and the Senate must confirm the nominee. And we know that the nominee's home county's senators have a virtual veto power in a practice known as senatorial courtesy, usually holding a nominee until another candidate a senator wants on the bench is advanced. By practice, no more than a bare majority of the county's judges can be members of the same political party. The senators, county political chairs, bar associations and civic groups all suggest names for consideration. Bar committees, as representative of the attorneys who will have to appear before the applicant, if appointed, hold hearings and present their views of the very factors that the proposed testing would explore.

There is no sub silento effort to permit unqualified judges to be appointed. In some instances, to have the bench reflect the ethnic composition of the local bar and population, demographics may be a factor in seeking out candidates for the bench. A perception of justice does require representation of all components of the population by members of the bench. But, gender, ethnicity, race and other non-professional attributes are factors unrelated to judicial competence, and should not influence appointment. The prevalence of African-American, Asian, Hispanic, LGBTQ and religious minority judges throughout the state shows that the system is working. Political contributions may cause a senator or county political official to notice a lawyer, but the days of buying a judgeship are, we believe, well behind us. Aspirants working in the political sphere is a healthy process, bringing their legal training and intellectual abilities to a largely thankless area of our society. Moreover, judges have been appointed from government and practice based on the work they have done, and the governor has a five-person group of outstanding attorneys and retired judges to screen and comment on prospective judges.

We have and need active review of our bench to weed out the few about whom the article complains to see they are not appointed or, if they have slipped through, not reappointed. The Supreme Court conducts a regular survey of all non-tenured trial judges, based upon bar questionnaires, twice before each judge's tenure reappointment. The feedback to the judges has a noticeable impact on their future behavior.

There are other systems. Elected judiciaries are prevalent in this country, and the results can be ruinous, as judges constantly must please the majority of the electorate in an initial election and upon reelection. In some other countries, judges are specially trained and/or culled from law school classes, with top graduates offered judicial positions, the next group of graduates offered prosecutorial jobs, and the rest moving on to law practices. While they may fit the places and times where they exist, our system is working here.

Editorial Board member Virginia Long recused from this editorial.