The 1947 New Jersey Constitution gave our governor enormous power to nominate and appoint people to many state positions: From the Attorney General to all county prosecutors to Superior Court judges to the New Jersey Supreme Court to the Board of Public Utilities to members of Pine Barrens Commission, amongst many many others. The New Jersey Governor has lots of nominatin' to do.
It’s all right there laid out in Article V, Section IV, Paragraph 2 with regard to the Governor’s Cabinet - “...shall be nominated and appointed by the Governor, with the advice and consent of the Senate…”. However, all too often, when the Governor and Senate President are from different political parties or have deep-seated personal squabbles, a nominee gets caught in the middle waiting in the wings for a long time until the Senate even considers the nomination.
Combined with the unwritten rule of “senatorial courtesy” - in which a State Senator can indefinitely block consideration of a nomination by the Governor for a gubernatorial nominee from the Senator's home county, without being required to provide an explanation - the “nominate and appointment” and “advice and consent” process can take months and months, slowing down the work of government.
What should be done, if anything, to speed up the gubernatorial appointment process?
The New Jersey Constitution states that officials are “nominated and appointed by the Governor, with the advice and consent of the Senate.” It is nearly identical to the words found in the United States Constitution. That phrase in both documents has long been understood as giving the executive the power to propose nominees and the Senate the power to dispose of them, either affirmatively or negatively. That is, until very recently.
The refusal of the United States Senate in 2016 to consider President Obama’s nomination of Merrick Garland to fill a vacancy on the Supreme Court set a dangerous precedent. The Senate’s failure to have a vote changed what “advice and consent” means and sent an unfortunate signal to statehouses across the nation on a new way to approach this constitutional responsibility.
While consent for any nomination is never a given, advice on that nomination should certainly be. Merriam-Webster defines advice as a “recommendation regarding a decision.” How can any Senate give their advice on a nominee by doing nothing? Silence is not advice; it is the antithesis of advice.
I am concerned that our “advice and consent” procedure written in the 18th century might not be sustainable in today’s political environment. If so, a modification should be considered. Why not require that the “advice” part of “advice and consent” be delivered by the Senate by a vote within 90 days of a nomination? The Senate would still get to have its say; to provide its advice which can be a yes or a no. A yes or no is better than silence. In the absence of a vote, the nomination would be considered approved. The Senate would retain its rightful “advice and consent” role while making sure that important positions are not left vacant.
If people’s everyday lives are being adversely affected in any way by the delaying of gubernatorial appointments, then shame on the Governor and the Senate. In reality, people’s everyday lives are not so affected by the delay, which is a political maneuver meant to force compromise, sometimes on issues unrelated to the appointment itself.
Is the process for gubernatorial appointments and senate confirmation pretty? No. In fact, sometimes it is downright ugly. But democracy isn’t perfect, particularly when different political parties control different branches of government or when there are competing ideologies or when deep-seated personal disputes exist. Winston Churchill said it best: “Democracy is the worst form of government except for all the rest.”
It’s often stated that the Governor of New Jersey, as per the authority granted him/her in the state constitution, is the most powerful in the nation. It’s an overstatement specific to gubernatorial appointments. The Senate’s constitutional right to “advice and consent” makes the Senate President – who unilaterally controls Senate quorum calls, votes and recesses – virtually an equal to the Governor on gubernatorial appointments.
What should be done, if anything, to speed up the gubernatorial appointment process? For starters, Governor Murphy has to stop thinking he's king. He needs to learn to “reach across the aisle,” including the aisle in-between him and the Democratic majority.