New Jersey State House in Trenton

Just when we thought we were rebuilding our judiciary's sense of independence from political interference (of course original gubernatorial nomination and Senate confirmation do involve politics but it is before a candidate has a judicial paper trail), a proposed amendment to our Constitution (together with an implementing bill) have raised the serious possibility of entrenched legislative involvement in the tenure of justices and judges beyond the mandatory retirement age of 70. Despite earlier unsuccessful attempts to raise this to 75, recall by the Supreme Court has been upheld, albeit narrowly. These two proposals would go further to authorize the state Senate, with no check, to enable certain justices or judges to stay on full time, for two-year terms, past the age of 70. This would be an ill-advised adjustment to our fundamental arrangement of governmental authority.

SCR-47, and its implementing legislation, S-1047, both recently introduced, would enable the Senate to choose which judges to exempt from the existing mandatory retirement age of 70, with no involvement of the governor. Senate cosponsor Nicholas Scutari said, in support of the plan, that some judges would like to stay on and "There are some really good ones who should stay on." As we see it, this view constitutes a dangerous erosion of our hard-earned judicial independence. The plan is in fact not based on a judge's desire to "stay on," but rather on, first the Senate Judiciary Committee's, and then the full Senate's, unreviewable judgment that a justice or judge is "good." That important judgment would be in the eye of the senatorial beholder, and would almost always involve a judgment on whether the senator agreed with the justice's or judge's decisions.

As documented in detail by former Judge Nelson Johnson, in his 2014 book "Battleground New Jersey: Vanderbilt, Hague, and Their Fight for Justice," the structure of our current judicial branch was the product of a multi-decade political battle over control of the courts. We have expressed our support for this structure, which in 1947 replaced one of the worst, and most politicized, court systems in the country. The advent of unilateral Senate decision-making on judicial extensions could inject local, legislative politics (particularly problematic for trial judges), based on a justice's or judge's prior decisions, into this purported decision of the merits of what is "good." We know there can be a very wide difference of opinion on who is a "good" justice or judge.

We call on the Legislature to reject these amendments, and resist the rush to get the constitutional amendment on the 2020 ballot. All those who support our independent judiciary should continue to push for an increase in the mandatory retirement age to 75, and encourage the governor to continue making judicial tenure decisions based only on the merits of the justice's or judge's judicial performance.