New Jersey – The Interdependent Third Branch

New Jersey courts struggle with judicial vacancies

New Jersey’s court system currently has 65 judicial vacancies, leading one lawmaker to propose raising the state’s mandatory retirement age for judges in order keep exising jurists on the bench.

Like many states, New Jersey currently requires its judges to retire at age 70. But a mandatory retirement system presumes that the state will quickly fill judicial seats as they become vacant. In fact, both Governor Phil Murphy and the state legislature have been slow to act on existing vacancies, creating a crisis so significant that nearly eighty retired judges have been temporarily called back into service to help clear the caseload backlog.

State Senator Shirley Turner is proposing raising the mandatory judicial retirement age to 75. It is a stopgap measure, to be sure. The only way to solve the crisis is for the other branches of state government to take their nomination and confirmation responsibilities seriously.

The situation in New Jersey perfectly illustrates the resource challenges that court systems must navigate in the 2020s. The heightened politicization of every aspect of American life has led the executive and legislative branches to treat each judicial vacancy as an zero-sum partisan event. (See the current kerfuffle in New York.) Meanwhile the courts, unable to secure the human resources they need to address their dockets and unable to control the flow of cases into the system, have to resort to recalls and other strategies to keep up with their workload. No wonder public confidence in every branch of government is in decline.

A judge faces a reprimand for a five-second phone call

Law360.com reports on an ethics complaint filed against Arthur Bergman, a retired state superior court judge in New Jersey. Judge Bergman allegedly made an independent phone call to a potential witness in a case over which he was presiding. Rule 3.8 of New Jersey’s Code of Judicial Conduct states, “Except as otherwise authorized by law or court rule, a judge shall not initiate or consider ex parte or other communications concerning a pending or impending proceeding.”

Judge Bergman does not contest that he made the call to a potential witness in the family trust dispute, but he maintains that the purpose of the call was simply to check the witness’s availability for a plenary hearing. The judge’s phone message, however, never referenced a hearing, and ultimately no hearing took place. Upon learning about the call, one of the attorneys in the case asked the judge to recuse himself, but Judge Bergman refused.

Complicating the story is the fact that Judge Bergman suffers from Parkinson’s disease, which apparently makes it difficult for him to speak. He maintains that this is why he did not mention the hearing on the message.

The state’s Advisory Committee on Judicial Conduct is seeking a public censure, to send a message to other judges that such behavior is not appropriate. Judge Bergman’s own lawyer maintains that disciplining a retired judge would do nothing to preserve the integrity of the state judiciary.

What do you think, readers?

Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.) And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.

Gunman opens fire at federal judge’s home, killing her son and wounding her husband

Several sources are reporting that a gunman came to the home of U.S. District Judge Esther Salas yesterday, and shot her son and husband when they answered the door. Her son, age 20, was killed and her husband was badly injured. Judge Salas was apparently in the basement at the time and was not hurt. The gunman, who was apparently dressed as a delivery driver, is still at large.

The motive for the shooting is unknown, although Judge Salas has presided over some high profile criminal cases since taking the federal bench in 2010. Unfortunately, attacks on judges and their families have happened before.

This is very sick, terrible news to start the week.

A brief history of New Jersey Supreme Court appointments

The New Jersey Globe has put together a useful series of articles on gubernatorial appointments to the state supreme court since 1947. Garden Staters and those interested in the court’s history (and its political dimensions) should take notice.

Alfred Driscoll’s First Seven Picks

The McGreevy and Corzine Courts

The Christie Court

In New Jersey, backlogs and judicial vacancies strain a court system

A snippet from a fascinating Law360 article, which notes that a temporary ban on jury trials combined with a judicial vacancy rate over 10% does not bode well for access to justice in the Garden State:

“My fear is the backlog of trials … whenever jury trials start again, is going to require so much attention from the judges that it’s probably going to have an effect on how other matters proceed in terms of motions and things that normally would be getting done sooner rather than later,” said Keith McDonald of Norris McLaughlin PA.

No vacancies, but a docket crisis nonetheless

I have been writing recently about the vacancy crisis in the U.S. District Court for the District of New Jersey, which has only 11 active judges despite a statutory entitlement to 17 (and a Judicial Conference recommendation for 20). But docket challenges can occur even where a court has its full complement of judges. This story highlights the docket overload in the Middle District of Louisiana, which has all three of its authorized judges in place but which still struggles to manage its docket, one of the heaviest in the nation.

Happily, it appears that Senator John Kennedy is continuing to push for more resources for the district. But in our fractured age, when every judicial appointment has taken on a (misplaced) political tint, it’s nearly impossible to expect that Congress will adequately address the resource need.

Feeling the squeeze, New Jersey’s federal court may borrow judges from Pennsylvania

I previously reported on the judicial vacancy crisis in the United States District Court for the District of New Jersey. The court, entitled to 17 active district judges by law (and recommended to have 20), is now operating with only 11 active judges due to a recent spate of retirements. Making matters worse is the district’s docket — the second heaviest in the nation — and the fact that President Trump has not nominated a single candidate to fill the district’s judicial vacancies.

Chief Judge Freda Wolfson has not been shy about discussing the challenges facing her court. Unable to replace judges on its own, the district is seeking creative ways to manage its docket, including encouraging parties to consent to trial by magistrate, turning away multidistrict litigation, and borrowing “visiting” judges from the Eastern District of Pennsylvania.

The use of visiting judges is not new, and the federal courts have shared judicial resources to the extent permitted by law for nearly a century. Indeed, in the early 1920s Chief Justice Taft (a favorite of this blog) proposed a “flying squadron” of judges who would not be assigned to any specific district but would instead be available to serve in any district where needs were the highest. That suggestion was rejected by Congress, but even today the courts show their ability to adapt to resource deficiencies beyond their control, and beyond their ability to remedy directly.

New Jersey federal judges speak out on vacancy crisis

The U.S. District Court for the District of New Jersey is authorized by law to have 17 active (i.e., full time) district judges. Since 2015, however, retirements have dwindled that number to 11 active judges. And simultaneously, the number of case filings has gone up 150 percent. As a result, the district today faces terrible docket congestion. The number of cases pending more than three years has more than doubled, and the total number of pending cases has more than tripled, over the last four years.

Now some of the district’s judges are speaking out. In a story published on NJ.com, Chief Judge Freda Wolfson insisted that Congress and the President should do their job and fill the vacancies.

While Wolfson said the judges continue to work around the clock and treat every case — no matter the magnitude — diligently, the sheer number of cases is going to inevitably slow down the process.

“We need help tremendously,” Wolfson said. “It is not just to relieve the burden on the judges. It is because we need to service the public as quickly as we can in a just manner.”

There is plenty of fault to go around. The Trump Administration has not put forward a single nomination for the District of New Jersey, even as it works to fill other judicial vacancies at a rapid pace. And in any event, neither of the state’s Democratic Senators, Bob Menendez and Cory Booker, have suggested any willingness to work with the Administration on potential nominees.

As I wrote for The Hill back in March, judicial vacancy emergencies like this stress the capacity of the courts and damage the administration of justice in all cases — most of which are entirely apolitical, garden-variety disputes. Playing politics with judicial appointments is damaging and largely pointless.

New Jersey may prohibit publication of judges’ home contact information

The New Jersey legislature will consider bills to prohibit publishing or posting the home addresses and phone numbers of state judges and prosecutors. Violating the prohibition would carry a potential 18-month prison sentence and a fine of $10,000. The bill also contemplates civil penalties.

The proposal comes amid increased awareness of direct threats to the judiciary. Just yesterday, a Florida man was arrested on multiple counts of threatening and stalking judges in Broward County. And the Texas legislature recently passed bills to beef up courthouse security and designate attacks on judges as hate crimes.