Credit: (AP Photo/POOL, Steve Helber)

The number of judicial vacancies is creeping up and if positions aren’t filled soon, some counties could be forced to pause divorce and other civil hearings, judges told an Assembly committee earlier this week.

According to the latest data from the judiciary, there are 50 openings, fewer than the record high of 75 in spring of 2022, but still roughly double the number judiciary officials have said they can tolerate without lengthy disruptions in casework.

Michael Blee, acting administrative director of the courts, did not mention the number of openings in his remarks. But when asked by a member of the Assembly Budget Committee on Monday, said the vacancies could lead to a pause of “some docket types” in some areas — particularly Hunterdon, Somerset and Warren counties. Civil and some family court matters were put on hold in that region for more than a year in early 2023 and 2024 due to the last judicial shortage.

“We respect the executive branch and the Senate, who try to fill the vacancies,” Blee said. “The chief justice and the director kind of look at priorities, and it’s so difficult because everybody who comes before us is a priority, and they have to make very tough decisions on what cases would be handled and what are not.”

William Mergner Jr., president of the New Jersey State Bar Association, said it is frustrating for lawyers and their clients, as well as the judges themselves, that the judiciary continues to be asked to operate with fewer judges than are needed to operate effectively.

“I believe that everybody involved in the process is well-intentioned, but at some point, what matters are results,” he said. “There should be more respect for sitting judges, who are bearing the brunt of this, than is apparent from the lack of seeming urgency to the process.”

The numbers, the process, the problems

During this legislative session, which began in January 2024, the state Senate has cleared 39 new Superior Court judges, according to the Senate Democrats’ office, with 13 nominations pending. A review of the listed by the nonpartisan Office of Legislative Services shows that two date to January 2024 and are not likely to move. That list indicates three pending nominations made by Gov. Phil Murphy this year.

‘If I have more than one or two vacancies … we’re totally unable to function.’ — Superior Court Assignment Judge Kevin Shanahan

Even if all the nominees were approved, that would still leave more empty seats than the 25-30 vacancies that judiciary officials said are manageable. And another four vacancies are imminent due expected retirements next month.

Blee said there needs to be a cushion because “other things can come up. You could have a judge that has a serious illness, you may have a judge that’s elevated to the appellate division, which adds to the stress of those vacancies.”

In New Jersey, the governor nominates a person to become a judge and the Senate confirms that nomination. The rise in vacancies could be due both to a lack of nominations and the Senate not acting quickly on confirmations. The Senate Judiciary Committee, which considers whether to send nominations to the full house for confirmation, has no scheduled meetings. Court observers noted that with lawmakers in the throes of the budget process, it is unlikely the Senate will confirm many, if any, new judges before the end of June.

One of the problems with filling the judicial bench is senatorial courtesy, the unwritten rule that allows senators to block nominees who live in their home county from being considered without giving a reason. In counties split into multiple legislative districts, all the senators involved must sign off on every nominee.

Maximum impact

The rule can impact any county but seems to have a broader impact on those counties divided into multiple legislative districts. Passaic County, with six senators representing portions of the county, has seven vacancies, while Essex County, with five senators, has six vacancies.

A small number of vacancies can cause problems in some counties.

“Don’t look at the overall total number,” Superior Court Assignment Judge Kevin Shanahan told the committee. Shanahan, who oversees the court region covering Hunterdon, Somerset and Warren counties, said, “The overall total number is very, very, very misleading.”

Vacancies in a large county like Essex may cause disruptions, Shanahan said, but could be manageable because more judges are assigned there. But in a smaller court region like his with a smaller number of judges, the loss of even one or two makes a big difference. In his region there are two vacancies with a third expected next month.

‘So justice is delayed for clients and they become frustrated with the system and they become frustrated with their lawyers.’ — William Mergner Jr., president, New Jersey State Bar Association

“We have just relatively recently come off of a 13- or 14-month shutdown of all civil trials and all FM (divorce-related) trials,” Shanahan continued. “If I have more than one or two vacancies … we’re totally unable to function. We can only go back to the Chief Justice one or two times and have him reassign a judge from another county to get in his or her car and drive a very long distance, whether they’re going to Belvidere or Flemington or Somerville, and we currently have two or three judges assigned from that situation.”

Shanahan said the three counties are still trying to work through the backlog from the yearlong pause of civil and family court matters, as well as cases delayed due to the COVID-19 pandemic.

When civil trials are halted, couples looking to divorce are stuck in limbo, often with children caught in the middle. Businesses can’t settle contract disputes. People seeking financial compensation are forced to wait for years. And while criminal matters in which people being detained without bail or on some court-ordered monitoring are receiving priority treatment, these are also taking longer than was anticipated when the state’s bail system was reformed eight years ago.

Mergner said that judges have been “doing a lot of creative things” to try to settle disputes in civil proceedings but some cases inevitably need to be tried, and the lack of judges means that in some counties it takes longer for people to get the relief they are seeking.

“So justice is delayed for clients and they become frustrated with the system and they become frustrated with their lawyers,” he said. “The civil division feels that more acutely than any other division, because we are fighting over money — and it could be somebody who could have been catastrophically hurt — but it’s not your liberty at stake … That makes the shortage fall more acutely on civil and impacts our litigants in a substantial way.”

— Graphics by Colleen O’Dea