De Vesa v. Dorsey

POLLOCK, J.,

concurring.

This is an appeal from the dismissal of a complaint challenging the constitutionality of the exercise of “senatorial courtesy” on judicial nominations. Because of the exercise of senatorial courtesy, the New Jersey Senate refused to consider the nomination of a Superior Court judge for reappointment. The Chancery Division dismissed the complaint as raising a nonjusticiable political question. We granted the motion for direct certification of plaintiff Fred De Vesa, Acting Attorney General, 134 N.J. 467, 634 A.2d 517 (1993), and now affirm the judgment of the Chancery Division.

I

The New Jersey Constitution provides that “[t]he Governor shall nominate and appoint, with the advice and consent of the Senate ... the Judges of the Superior Court.” N.J. Const, art. VI, § 6, ¶ 1. “Senatorial courtesy” is a practice followed by the Senate in exercising its constitutional power to confirm gubernatorial nominations. Over the years, senatorial courtesy has evolved as an unwritten, informal, and unofficial procedure allowing a single senator who resides in or represents any portion of the county in which a nominee is domiciled to veto the appointment without further action by the Senate. In this case, Senator John Dorsey invoked senatorial courtesy to oppose the reappointment *424of Judge Marianne Espinosa Murphy to the Superior Court. Plaintiffs challenge the constitutionality of senatorial courtesy and its exercise on Judge Murphy’s nomination.

In July 1986, Governor Thomas H. Kean nominated Judge Murphy of Chatham Borough, Morris County, to be a judge of the Superior Court. In September 1986, with the advice and consent of the New Jersey Senate, Governor Kean appointed her to that court. Under the New Jersey Constitution, the initial term for a Superior Court judge is seven years, after which time that judge may be reappointed by the Governor if confirmed by the Senate. N.J. Const, art. VI, § 6, ¶ 3. A reappointed judge receives tenure until the mandatory retirement age of seventy. Ibid.

Judge Murphy’s initial seven-year term expired on September 11, 1993. In anticipation of the expiration of her term, Governor Jim Florio, on May 13,1993, gave public notice to the Secretary of the Senate of his intent to submit Judge Murphy’s name for reappointment and, on May 21, 1993, the Governor formally renominated Judge Murphy in a letter to the Senate President.

Senator Dorsey represents the twenty-fifth legislative district, which includes a part of Morris County, but not Chatham Borough. Invoking senatorial courtesy, he refused to approve Judge Murphy’s reappointment. Some senators disapproved of his exercise of senatorial courtesy. One senator, Raymond Lesniak, proposed a resolution, identified as Resolution 99,1 which sought to *425compel the Judiciary Committee to consider Judge Murphy’s nomination and to make a recommendation to the Senate by September 1. As disclosed by the Senate minutes for August 16, 1993, the following events occurred:

Senator Lesniak, pursuant to Rule 128 [which permits a senator to make a motion to move a resolution], moved to introduce [Senate Resolution No. 99] and have the same made the Order of the Day. Senator DiFrancesco ruled the motion was out of order.
Senator Lesniak moved to appeal the ruling of the Chair. A machine vote was taken. The resolution Lost by the following machine vote: 12-22.

[Minutes of New Jersey Senate, August 16, 1993, at 1.]

Thus, the Senate defeated Senator Lesniak’s motion to appeal the ruling of the Senate President. Thereafter, the Senate did not further consider the nomination.

On August 27, 1993, before the expiration of Judge Murphy’s term, plaintiffs instituted this action. Plaintiffs are Acting Attorney General De Vesa, Judge Murphy, Senator John H. Adler, Senator Edward T. O’Connor, Jr., who is also a member of the Senate Judiciary Committee, and a citizen, Wilbur C. Hantel. Defendants are various senators, including Senator Dorsey, Senate President Donald T. DiFrancesco, and Senator William L. Gormley, the chair of the Senate Judiciary Committee.

*426Plaintiffs sought injunctive relief and a declaratory judgment that the practice of senatorial courtesy, particularly as it applies to judicial nominations for reappointment, violates the New Jersey Constitution on various grounds. In the alternative, plaintiffs asked that Judge Murphy be deemed reappointed if, as a result of the actions or inactions of the defendants-senators, the entire Senate failed to act on her appointment before September 11, 1993.

On August 31, 1993, Senator Dorsey filed papers in opposition to plaintiffs’ claims for relief and moved to dismiss on various grounds, including nonjusticiability. Other defendants took a similar position.

On September 2, 1993, Judge Carchman of the Chancery Division heard oral argument and, on September 3, dismissed plaintiffs’ complaint. He determined that the case was not justiciable, noting that the Advice and Consent Clause commits the confirmation power to the Senate and that no standards exist by which the judiciary can determine whether the exercise of senatorial courtesy constitutes an abuse of that power. The court also concluded that senatorial courtesy was a valid exercise of the confirmation power under the Advice and Consent Clause of the State Constitution.

We heard oral argument on September 8, 1993. Three days later, Judge Murphy’s term expired.

II

This case implicates three principles that define the role of the judiciary in a democracy: judicial review, judicial restraint, and judicial independence. An independent judiciary, one free from political pressure, is essential to a democratic society. Notwithstanding the independence of judges from political considerations, judicial appointments, like other gubernatorial appointments, remain subject to the political process. Our focus is on the role of senatorial courtesy in that process.

Senatorial courtesy
as it relates to judicial appointments, may be stated as follows: If a nomination to judicial office with respect to a particular county is displeasing to one or more of the senators from that county, then the other members of the Senate will take no *427action looking to the confirmation of the proposed nominee and this quite apart from the nominee’s qualifications or lack thereof.

[Passaic County Bar Ass’n v. Hughes, 108 N.J.Super. 161, 169, 260 A.2d 261 (Ch.Div.1969).]

Although not codified as a Senate rule of procedure relating to gubernatorial nominations, senatorial courtesy is nevertheless practiced in conjunction with those rules. Under the formal Senate Rules, all nominations received from the Governor are referred to the Senate Judiciary Committee, unless the Senate President directs the nomination differently. Rules of the Senate, R. 150. The Judiciary Committee considers the nomination and then reports to the Senate with a recommendation for either rejection or acceptance. Rules of the Senate, R. 151. The full Senate then votes on the nomination. Rules of the Senate, R. 152. According to an affidavit filed by Senator Gerald Cardinale, a senator can invoke senatorial courtesy after the Judiciary Committee receives the nomination. As described by Senator Cardinale, the practice is for the Judiciary Committee to send a form letter to each Senator “from the county and district where the nominee resides” seeking the approval of those Senators to the nomination. If any of those senators fails to “return the approval form,” the Senate will take no further action on the nomination. The exercise of senatorial courtesy by a single senator refusing or failing to sign an “approval form” with respect to a nomination can be final. It “ ‘forecloses indefinitely any consideration by the committee on the merits of the nomination.’” Passaic County Bar Ass’n, supra, 108 N.J.Super. at 172, 260 A.2d 261 (quoting Governor Richard J. Hughes, Address Before the Essex County Bar Association (April 1965)). In sum, the practice of senatorial courtesy allows a single senator to reject a nomination without regard to its merits, without disclosure of any reasons, without the conduct of any hearing, and without any action by the Senate as a whole. Passaic County Bar Ass’n, supra, 108 N.J.Super. at 172, 260 A.2d 261.

As explained by Senator Dorsey at oral argument, the exercise of senatorial courtesy was restricted originally to the “home county” senator of a nominee. With the development of cross-county districts, however, the courtesy privilege was afforded to *428any senator whose district extended into the county in which the nominee is domiciled. In effect, Senator Dorsey could exercise senatorial courtesy on Judge Murphy’s nomination, although she is not one of his constituents.

III

As a threshold matter, we consider whether this case has been rendered moot because the Senate did not confirm Judge Murphy’s nomination during the term of her original appointment.

Unlike the federal Constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. See U.S. Const, art. III, § 2, cl. 1; N.J. Const. art. VI, § 1, ¶ 1. Nevertheless, this Court refrains from rendering advisory opinions or exercising its jurisdiction in the abstract. See In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104, 539 A.2d 1197 (1988).

Consistent with that principle, our courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot. See Oxfeld v. New Jersey Stale Bd. of Educ., 68 N.J. 301, 303-04, 344 A.2d 769 (1975). A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation. Id. at 303, 344 A.2d 769.

In some circumstances, however, our courts will entertain a case despite its mootness. Specifically, our courts will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209 (1985); Clark v. Degnan, 83 N.J. 393, 397, 416 A.2d 816 (1980). “While we ordinarily refuse to examine moot matters due to our reluctance to render legal decisions in the abstract and our desire to conserve judicial resources, we will rule on such matters where they are of substantial importance and are capable of repetition yet evade review.” In re J.I.S. Indus. Serv. Co. Landfill, supra, 110 N.J. at 104, 539 A.2d 1197 (citations omitted).

The threatened veto of Judge Murphy’s reappointment by the exercise of senatorial courtesy triggered this litigation. Her term of office expired without reappointment before the matter could be *429adjudicated; hence, the constitutionality of the veto of her judicial nomination by the exercise of senatorial courtesy no longer poses a live issue. Nevertheless, the validity of senatorial courtesy remains an issue of extraordinary public concern. It raises fundamental questions implicating the respective powers and responsibilities of each branch of government over the appointment of judges.

Further, the constitutionality of senatorial courtesy as an exercise of the Senate’s confirmation powers with respect to judicial appointments may recur. As illustrated by the circumstances of this case, the relatively short period of time between a judge’s renomination and the expiration of that judge’s initial term constrains the ability of a court to adjudicate the validity of senatorial courtesy. Consequently, the issue is one that may often escape review. We therefore invoke the well-established exception to the mootness doctrine and entertain this action.

IV

We next consider whether the issue before the Court is justiciable. Stated generally, that issue is whether the courts can adjudicate a challenge to the constitutionality of senatorial courtesy. As Justice Brennan wrote in Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 682 (1962), “[deciding whether a matter has in any measure been committed by the Constitution to another branch of government ... is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” So here, if we treat the issue as subject to judicial review, we may proceed to the substance of the claim. But if we determine that the matter is best left to the Senate, we should dismiss the case immediately so as not to ‘spawn[ ] any legal consequences’ ” by any further discussion of a nonjusticiable issue. Goldwater v. Carter, 444 U.S. 996, 1005, 100 S.Ct. 533, -538, 62 L.Ed.2d 428, 438 (1979) (Rehnquist, J., concurring) (quoting United States v. Munsingwear, 340 U.S. 36, 41, 71 S.Ct. 104, 107, 95 L.Ed. 36, 42 (1950)). Like the Chancery Division, we conclude that this case presents a nonjusticiable political question.

*430Baker, supra, states the basic test for the analysis of justiciability:

Prominent on the surface of any ease held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

[369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686.]

We begin our analysis by determining whether a specific constitutional provision has been textually committed to one of the political branches. As Chief Justice Warren stated in Powell v. McCormack, 395 U.S. 486, 521 n. 43, 89 S.Ct. 1944, 1964 n. 43, 23 L.Ed.2d 491, 516 n. 43 (1969), “the force of respondents’ ... arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question.” This case presents a clear textual commitment to a coordinate political branch, the New Jersey Senate.

The Constitution explicitly places the power of advising and consenting in the hands of the New Jersey Senate, not the executive or judicial branches. “Here is a clear commitment [to the Senate] derived from the text of the Constitution itself.” Passaic County Bar Ass’n, supra, 108 NJ.Super. at 173, 260 A.2d 261. “The Governor (Executive) is authorized to nominate and appoint. The Senate (Legislative) is to advise and, before the appointment may be finally made, to consent.” Ibid. Missing from the Constitution is any role for the judiciary. Because “[t]he nonjusticiability of a political question is primarily a function of the separation of powers,” Baker, supra, 369 U.S. at 210, 82 S.Ct. at 706, 7 L.Ed.2d at 682, we would unduly dislocate that separation if we were to prescribe how the Senate is to conduct the confirmation process.

*431In an analogous case, this Court refused to interfere with the legislative custom of “gubernatorial courtesy,” a practice under which a bill that has passed both houses of the Legislature is not presented to the Governor for signing until the Governor “calls” for the bill. Gilbert v. Gladden, 87 N.J. 275, 432 A.2d 1351 (1981). That practice, in effect, vests the Governor with a “pocket veto.” The plaintiffs in Gilbert included members of the Senate and Assembly who sued the leaders of both houses to compel prompt presentation of passed bills to the Governor, even if the Governor had not called for the bill.

Although the Gilbert Court found the use of gubernatorial courtesy to be “questionable,” 87 N.J. at 287, 432 A.2d 1351, it determined the issue to be a “nonjusticiable political question the resolution of which is constitutionally committed to the Legislature....” Id. at 288, 432 A.2d 1351. Finding a textual commitment to the legislative branch, the Court concluded that “[w]hether gubernatorial courtesy is to be further sanctioned or finally condemned must be determined either by the Legislature or at the bar of public opinion” and not in a courtroom. Id. at 287-88, 432 A.2d 1351.

Similarly, in Nixon v. United States, 506 U.S. -, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993), the United States Supreme Court declined to decide whether the Senate could fulfill its constitutional obligation to try impeachment cases by delegating that duty to a twelve-member committee. The Nixon Court examined the scope of article 1, section 3, clause 6 of the United States Constitution, which provides that “[t]he Senate shall have the sole power to try all Impeachments.” Through Impeachment Rule XI, the Senate delegated to a committee ‘“all the powers and functions conferred upon the Senate ... when sitting on impeachment trials.’ ” See id. at-n. 1, 113 S.Ct. at 734 n. 1, 122 L.Ed.2d at 8 n. 1 (quoting Senate Impeachment Rule XI). Nixon, a convicted federal judge, contended that the term “try” required the entire Senate, not merely a committee, to conduct an impeachment trial. The Court, however, determined that it could not interpret “try” *432because the Constitution textually committed to the Senate the responsibility for trying articles of impeachment. Id. at-, 113 S.Ct. at 736, 122 L.Ed.2d at 10.

The Nixon Court buttressed its reliance on the text of the Constitution by pointing to the lack of judicially-discoverable standards, stating that “the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.” Id. at -, 113 S.Ct. at 735, 122 L.Ed.2d at 9. Similarly, the absence of standards in this case confirms the inappropriateness of judicial involvement.

Contrary to our concurring and dissenting colleagues, post at 448-450, 458-459, 634 A.2d at 507-508, 512-513, we find no manageable standards in the Advice and Consent Clause of the New Jersey Constitution. Nothing defines “advice and consent.” Nor does the Constitution specify how the Senate is to exercise its responsibility. As then Judge, later Justice, Mountain, asked rhetorically: “How is a judicial inquiry to be undertaken to find out whether, in fact, inaction on the part of the Senate results from a deference to the tradition and practice of senatorial courtesy or from some other cause?” Passaic County Bar Ass’n, supra, 108 N.J.Super. at 173, 260 A.2d 261; cf. Loigman v. Trombadore, 228 N.J.Super. 437, 443, 550 A.2d 154 (App.Div.1980) (finding no judicially-manageable standards in article VI, section 6, paragraph 1 pertaining to gubernatorial power to nominate judges). The Senate has the power to withhold action on a nomination for any number of reasons: the President might refuse to post a nomination for a Senate vote, the Senate could vote in caucus not to move a nomination for consideration, or the chair of the Judiciary Committee could fail to schedule a hearing for any reason, including deference to any one senator.

*433We are similarly unpersuaded by our colleagues’ attempt to derive from the term “Senate” a standard that would require collective action by the entire Senate when providing advice and consent. As with the term “advice and consent,” the standard derived from “Senate” is unmanageable. Our colleagues construe “Senate” to mean that “at some point in the life of a nomination the entire Senate as a legislative body must manifest collectivity when it takes final action on the nomination.” Post at 454, 634 A.2d at 510. We cannot discern from their opinion what action will satisfy that standard. Furthermore, by requiring a collective vote on the nomination they ignore the Senate’s prerogative either to act or not to act. The Constitution does not mandate that the Senate “shall” advise on and consent to an appointment; it merely contemplates that the nomination will not proceed without the advice and consent of the Senate. Consistent with the plain language of the Constitution, the Senate Rules recognize that the Senate President may prevent the referral of a nomination to the Judiciary Committee. See Rules of the Senate, R. 150 (providing that “[w]hen nominations shall be made by the Governor to the Senate, they shall, unless otherwise ordered by the Senate President, be referred to the Judiciary Committee”). The Rules likewise recognize that without Senate action, a nomination will lapse. Rules of the Senate, R. 154b (stating that “[a]ll nominations neither confirmed nor rejected during an annual session of the Senate shall not be acted upon in a subsequent annual session without being again made to the Senate by the Governor”). In brief, the text of the Constitution restrains us from ordering the Senate to confirm a nomination, just as it restrains us from ordering the Governor to submit one. The Senate, like the Governor, is part of a co-equal branch with which we may disagree, but which, notwithstanding our disagreement, we must respect.

Presumably, our colleagues are prepared not only to determine when the Senate has acted, but also to invalidate any Senate Rules that are inconsistent with that determination. Our colleagues must also be prepared to provide a remedy, one that remains *434undefined in their opinion, if the Senate ignores that determination. Perhaps this Court could devise a confirmation process that is fairer than that devised by the Senate. Devising such a process, however, is a prerogative of the people and their elected representatives, not the judiciary.

The Nixon Court, when faced with a similar argument that the term “Senate” means the full Senate and not a Senate Committee, refused to require such collective actiom In rejecting Judge Nixon’s interpretation of “Senate” in the Impeachment Clause, Chief Justice Rehnquist declared in dicta:

It would be possible to read the ... [Impeachment] Clause this way, but it is not a natural reading. Petitioner’s interpretation would bring into judicial purview not merely the sort of claim made by petitioner, but other similar claims based on the conclusion that the word “Senate” has imposed by implication limitations on procedures which the Senate might adopt.

[506 U.S. at -, 113 S.Ct. at 737, 122 L.Ed.2d at 11.]

The Supreme Court foresaw a potential flood of litigation were it to acknowledge a “collectivity” requirement in the federal Congress. Additionally, it found Judge Nixon’s reading to be inconsistent with its construction of the Impeachment Clause.

We are unpersuaded by our colleagues’ distinction of the Nixon Court’s analysis of the term “Senate.” Post at 450-452, 634 A.2d at 508-509. They recite that the Impeachment Clause contains other express limitations that the Advice and Consent Clause does not, namely, that the Senate take an oath when sitting for the purpose of impeachment; that the Chief Justice preside when the President is tried; and that conviction requires a two-thirds majority. From that, they distinguish the term “Senate” in the federal Impeachment Clause and conclude that nothing prevents a “commonsense and natural” reading of the term “Senate” in the State provision to derive the collectivity standard. Id. at 451, 634 A.2d at 509.

Their analysis misses the mark. Even in the absence of specific limitations in the Impeachment Clause, the Nixon Court would have held the case to present a nonjusticiable political question. *435As previously indicated, the Court’s holding was based on the textual commitment to the Senate and the lack of judicially-manageable standards. See Nixon, supra, 506 U.S. at -, 113 S.Ct. at 741-42, 122 L.Ed.2d at 16 (White, J., concurring) (“The majority finds a clear textual commitment in the [Impeachment Clause]....”); id. at-, 113 S.Ct. at 743-44,122 L.Ed.2d at 19 (White, J., concurring) (“The majority also contends that the term ‘trf does not present a judicially manageable standard.”). As the Nixon majority emphasizes, the Court’s conclusion is merely “fortified” by the three express limitations in the clause. Id. at -, 113 S.Ct. at 736, 122 L.Ed.2d at 6. The inconsistency of collective action with the Court’s construction of the word “Senate” in the Impeachment Clause was not essential to the holding of the case. In fact, one of the limitations in the Impeachment Clause, the requirement that “no Person shall be convicted without the Concurrence of two thirds of the Members present,” counsels in favor of collective action. U.S. Const, art. I, § 3, cl. 6. Yet, the Nixon Court refused to demand that the full Senate conduct an impeachment trial.

Our colleagues read Nixon to mean that the United States Supreme Court upheld Judge Nixon’s conviction because the Senate acted collectively when it eventually voted on the articles of impeachment. The Court, however, did not uphold the conviction for that reason. It merely held nonjusticiable Nixon’s challenge to the method selected by the Senate for conducting the trial. The Senate’s vote as a body, although essential to the impeachment, was nonessential to the Court’s holding. Thus, the fact that the United States Senate voted collectively on Nixon’s impeachment lends no support to our colleagues’ argument that the New Jersey Senate must vote collectively when rendering its advice on and consent to gubernatorial nominations. The flaw in their argument is the assumption that the Court found that the collective vote satisfied the Senate’s obligation to try Nixon — the precise issue that the Court declined to reach. Indeed, to the extent that delegating to a single senator the power of “senatorial courtesy” over a gubernatorial nomination is like delegating the trial of an *436impeachment to a committee, the refusal of the United States Supreme Court to review the trial in Nixon supports our like refusal to review the exercise of senatorial courtesy here.

We would be remiss if we failed to note that our colleagues' conclusion that the term “Senate” requires collective action is exclusively the product of their own ingenuity. No party has so argued in this case. Perhaps for that reason, the Chancery Division did not consider the issue. The point has also escaped the attention of every other court that has addressed senatorial courtesy. Nor is it mentioned in the proceedings of the 1947 constitutional convention. That omission is all the more striking because senatorial courtesy has existed in this State since the last century. See Passaic County Bar Ass’n, supra, 108 N.J.Super. at 168-72, 260 A.2d 261 (summarizing the history of senatorial courtesy). Indeed, the history of the 1947 Constitution reflects an unsuccessful attempt to abolish it. The proposed 1944 Constitution provided that if the Senate did not affirm or return a nomination within six months, the nomination would be deemed to be confirmed, an apparent attempt to eliminate senatorial courtesy. Public Hearings on the Revised Constitution 1944, Subcommittee on the Executive Article, February 2, 1944, at 145-20. That Constitution, however, was not ratified. Although the Committee on the Executive, Militia, and Civil Officers for the 1947 Constitution heard testimony suggesting a requirement for Senate action on nominations within a prescribed time, 5 State of New Jersey Constitutional Convention of 1947 at 51 (testimony of Governor Harold G. Hoffman); id. at 90 (testimony of Charles R. Erdman, Jr., of Committee on Constitutional Revision); id. at 101-02 (same); id at 134 (testimony of Mrs. Charles Kellers of League of Women Voters); id. at 476 (recommendations of League of Women Voters), the Constitution contains no such requirement. One might expect that so dramatic a change in the interpretation of the Advice and Consent Clause as that proposed by our colleagues, if tenable, would have been proposed previously by someone at the 1947 Constitutional Convention, a scholar, a *437lawyer, or a court. The absence of any such proposal casts doubts on our colleagues’ conclusion.

The New Jersey Senate has determined that senatorial courtesy should play a role in the confirmation of gubernatorial nominations. If we were senators, we might well reach a different conclusion. For present purposes, however, we are restrained by the belief that the judiciary should not review the Senate’s decision. Government, including the part allocated to the judiciary, is an art as well as a science, requiring an appreciation not only of the allocation of power to other branches, but also of the subtleties of the exercise of that power. We find the challenge to the Senate’s exercise of its confirmation power to be nonjusticiable.

Having decided that the case was nonjusticiable, the Chancery Division did not reach defendants’ additional claims that senatorial courtesy is protected both as an internal legislative rule of procedure and as an expression of the legislative prerogatives of speech and debate. Because we also find the matter to be nonjusticiable, we likewise do not reach these additional claims.

V

We also disagree with our colleagues’ factual predicate that the August 16 vote on the procedural motion constituted the discharge of the Senate’s constitutional duty to advise on and consent to judicial nominations. Post at 459-464, 634 A.2d at 512-513. From the bare fact that a negative vote on the motion would foreclose further consideration, our colleagues conclude that every senator understood and intended that a vote on the motion constituted a vote on the nomination. Although some senators may have so perceived their vote, we are precluded from “delving into the thought processes and motivations which led each individual senator to vote or not vote as he did.” Kligerman v. Lynch, 92 N.J.Super. 373, 376, 223 A.2d 511 (Ch.Div.1966). The plain language of the motion reveals that it was nothing more than an appeal from a ruling of the President of the Senate denying consideration of Senate Resolution 99. According to the Senate’s *438minutes, Senate Resolution 99 sought only a direction from the Senate Judiciary Committee to consider Judge Murphy’s nomination and to forward its recommendations to the full Senate. If the motion had carried, it would have directed the Senate President to submit Senate Resolution 99 to the Senate for consideration. If, in turn, that resolution had passed, the Senate Judiciary Committee could have either approved or disapproved the nomination, and the Senate thereafter could have either granted or -withheld its advice and consent. Thus, before the Senate could vote on Judge Murphy’s nomination, it was required to vote in favor of the motion requiring consideration of Senate Resolution 99 and, if the motion had carried, to vote on the resolution. Passage of the resolution would have required the Senate Judiciary Committee to consider Judge Murphy’s nomination and to forward its recommendations to the Senate, at which point the Senate would then consider the Judiciary Committee’s recommendations. Only after all four of these steps had been completed would the Senate have voted on the nomination. Any senator who voted in favor of the motion or the resolution could have voted against the nomination, and any Senator who voted against the motion and resolution could have voted to confirm. For our part, the steps between the vote on the motion and the vote on the nomination are too numerous and uncertain to equate the one with the other.

The failure of the procedural motion admittedly led to the rejection of the nomination, but that was only because after the motion had failed, the Senate continued to honor the exercise of senatorial courtesy. We will never know, nor need we, what motivated the proponents and opponents of the motion to vote as they did. Nor will we ever know how any of the senators would have voted on Judge Murphy’s nomination. The Senate never acted on the nomination.

No party has argued either in the Chancery Division or in this Court that the vote on the motion constituted the advice and consent of the Senate. The most that can be said is that in response to a question at oral argument, Senator Dorsey stated *439that the Senate knew that the failure of the motion to carry would lead to the defeat of the nomination. Certainly, Judge Murphy did not perceive that the vote on the motion constituted the vote on her nomination. If she had so perceived that vote, she would not have instituted this suit. Likewise, the defendants-senators did not believe that their vote on the motion equated with advice on and consent to Judge Murphy’s nomination, for they did not so argue in the Chancery Division or in this Court. Consequently, we respectfully disagree with our colleagues’ characterization of the vote on the motion to appeal from a procedural ruling of the President of the Senate as constituting the Senate’s advice and consent on Judge Murphy’s nomination.

We also disagree with the wisdom of discussing generally judicial review of the confirmation process. Having determined that the vote on the resolution constituted the requisite collective action by the Senate, our colleagues proceed to discuss the practice of senatorial courtesy, which, according to them, does not constitute collective action. See post at 459-463, 634 A.2d at 512-514. The discussion is pregnant with the premise that to some undefined extent Senate confirmation is subject to judicial review. Implicit in judicial review, however, is an unavoidable intrusion into a co-equal branch of government, an intrusion that may draw courts into a political quagmire'. See Baker, supra, 369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed.2d at 686 (stating that additional consideration in political question inquiry is “the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government ...”). We respectfully suggest that our colleagues, having determined that the Senate acted on the nomination, should not address the constitutionality of a hypothetical inaction attributable to the observance of senatorial courtesy.

VI

Like our colleagues, however, we would not preclude all judicial review of senatorial courtesy. ‘We hold only that no such *440questions are presented in this case.” Gilligan v. Morgan, 413 U.S. 1, 12, 93 S.Ct. 2440, 2447, 37 L.Ed.2d 407, 416 (1973). If, for example, the Senate through the exercise of senatorial courtesy violated the fundamental rights of a nominee, we believe that the judiciary could review that action. In re Lamb, 67 N.J.Super. 39, 59,169 A.2d 822 (App.Div.), aff'd, 34 N.J. 448, 170 A.2d 34 (1961).

As Justice Souter wrote in Nixon, “[n]ot all interference is inappropriate or disrespectful, ... and application of the [political question] doctrine ultimately turns, as Learned Hand put it, on ‘how importunately the occasion demands an answer.’ ” 506 U.S. at -, 113 S.Ct. at 748, 122 L.Ed.2d at 24 (Souter, J., concurring in judgment) (quoting Learned Hand, The Bill of Rights 15 (1958)). According to Justice Souter, if the Senate convicted a federal officer on the results of a coin toss, judicial interference would be warranted. Ibid. To carry forward his metaphor, judicial review would likewise be warranted in the unlikely event that the Senate were to try to give its advice on and consent to a nomination through a coin toss. See Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972) (upholding due-process review over state legislative contempt proceedings); Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) (deeming case justiciable when failure to seat legislator resulted in First Amendment violation); Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125,130, 5 L.Ed.2d 110, 116 (1960) (finding that allegation of discrimination in violation of Fifteenth Amendment lifted reapportionment dispute “out of the so-called ‘political’ arena and into the conventional sphere of constitutional litigation”); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614, 49 S.Ct. 452, 455, 73 L.Ed. 867, 872 (1929) (holding United States Senate’s power to issue arrest warrant to be “subject only to the restraints imposed by or found in the implications of the Constitution”); Kilboum v. Thompson, 103 U.S. (13 Otto) 168, 199, 26 L.Ed. 377, 390 (1881) (declaring that “[t]he House of Representatives ... is not the final judge of its own power and privileges in cases in which the rights and liberties of the subject are concerned, but the legality of its action may be examined and determined by this *441court”); State v. Rogers, 56 N.J.L. 480, 616, 28 A. 726 (Sup.Ct. 1894) (holding that “when the inquiry is whether the legislature or any other body or officer has violated the regulations of the constitution, it is entirely plain that the decision of that subject must rest exclusively with the judicial department of the government”).

Our colleagues allege that judicial restraint in the face of an exercise of senatorial courtesy violates “bedrock principles of representative democracy.” Post at 463, 634 A.2d at 515. A comparison of the opinions in Baker and in Nixon refutes the allegation. In Baker, the United States Supreme Court confront ed a violation of the Equal Protection Clause by a statutory-apportionment scheme of legislative districts. 369 U.S. at 187-88, 82 S.Ct. at 694, 9 L.Ed.2d at 668. To vindicate the violation of that fundamental right, the Court declared the statute unconstitutional, notwithstanding some unavoidable intrusion into the prerogatives of the State Legislature.

The Court in Nixon, relying on Baker, declined to review the constitutionality of the United States Senate’s delegation of an impeachment trial to a committee. Thus, the Nixon Court recognized the propriety of judicial review, when confronted with a statutory violation of a fundamental right, such as was at stake in Baker, and the propriety of judicial restraint, when contemplating the internal operation of another branch of government that does not impinge on such a right. So here, this Court can stand ready to review legislation that transgresses “bedrock principles of representative democracy” and still refrain from reviewing the internal operations of the New Jersey Senate in the confirmation process. It follows that even an internal Senate practice is subject to judicial review if that practice results in the violation of fundamental rights. As vital as judicial independence is to a democracy, non-tenured judges do not enjoy an unqualified right to reappointment.

Distressing though senatorial courtesy may be, particularly when exercised on a sitting judge, it remains a prerogative of the *442Senate. If we were senators, we might well join those who urge the abolition of senatorial courtesy on judicial reappointments. The separation of powers, however, requires that courts not interfere with Senate prerogatives except when fundamental rights are at stake. Admittedly, the distinction leaves undefined the zone in which senatorial courtesy is subject to judicial review. The test of respect for another branch of government, however, lies in judicial restraint not when a court agrees with that branch, but when it disagrees.

VII

At oral argument, which was held before the General Election on November 2, defendants urged the Court to exercise judicial restraint. They argued that the remedy for the exercise of senatorial courtesy is not in this Court, but in the court of public opinion. The import of the argument is that voters can refuse to reelect a senator who exercises senatorial courtesy. Indeed, Senator Dorsey’s exercise of senatorial courtesy generated considerable public interest and became a major issue in his unsuccessful campaign for reelection. Peggy Wright, MacInnes Dumps Dorsey, Daily Record, Nov. 3, 1993, at 1; Brian T. Murray, Battle Over Judges Replayed in Senate Race, Star-Ledger, Oct. 10, 1993, at 18. That eventuality, however, plays no part in our belief that the political process provides an effective remedy without judicial intervention.

Over one-hundred years ago, Professor James B. Thayer stated the case for judicial restraint:

[T]he safe and permanent road towards reform is that of impressing upon our people a far stronger sense than they have of the great range of possible harm and evil that our system leaves open, and must leave open, to the legislatures, and of the clear limits of judicial power; so that responsibility may be brought sharply home where it belongs. The checking and cutting down of legislative power, by numerous detailed prohibitions in the constitution, cannot be accomplished without making the government petty and incompetent____ Under no system can the power of courts go far to save a people from ruin; our chief protection lies elsewhere.

*443[The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 156 (1893).]

Echoing those words, Judge Learned Hand stated:

this much I think I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

[The Contribution of an Independent Judiciary to Civilization in the Spirit of Liberty: Papers and Address of Learned Hand 172, 181 (Irving Dillard ed. 1951).]

Sometimes, the hardest decision is the decision not to decide. Yet the decision not to decide is at the core of judicial restraint. Ultimately, the responsibility for judicial independence rests in the hands of the people. A court must stay its hand if the public and its elected representatives are to assume their responsibilities for an independent judiciary.

Justices CLIFFORD and GARIBALDI join in this concurrence.

Senate Resolution 99 provides:

A SENATE RESOLUTION to direct the Senate Judiciary Committee to hold a hearing on the reappointment of Judge Marianne Espinosa Murphy.

WHEREAS, The current term of Judge Marianne Espinosa Murphy as a member of the Superior Court is scheduled to expire on September 11, 1993; and
WHEREAS, On May 24, 1993, the Governor's Office submitted a nomination reappointing Judge Murphy as a Superior Court judge; and WHEREAS, If that reappointment is approved by the Senate, Judge Murphy will have tenure as a Superior Court judge; and
WHEREAS, The democratic process dictates that Judge Murphy has the right to a full and honest debate on her record and performance as a Superior Court judge; and
WHEREAS, Whether Judge Murphy’s record as a Superior Court Judge merits reappointment is an issue which should be determined in a public forum with *425both opponents and proponents of Judge Murphy’s reappointment being given an opportunity to appear and testify; and
WHEREAS, The Senate Judiciary Committee has to date not scheduled consideration of Judge Murphy’s reappointment; now, therefore,

BE IT RESOLVED by the Senate of the State of New Jersey:

1. The Senate Judiciary Committee is directed to schedule a committee meeting for the purpose of consideration of the reappointment of Judge Marianne Espinosa Murphy on or before August 23.

2. The Senate Judiciary Committee is further directed to forward its recommendations concerning Judge Murphy’s reappointment to the full Senate on or before September 1.

STATEMENT

This resolution directs the Senate Judiciary Committee to hold a committee meeting on the reappointment of Judge Marianne Espinosa Murphy.