# De Vesa v. Dorsey

> Supreme Court of New Jersey · December 23, 1993 · 134 N.J. 420

URL: https://www.frixlaw.com/law-library/cases/9752052

## Case

- **Full name:** Fred De Vesa Acting Attorney General of New Jersey; Hon. Marianne Espinosa Murphy, J.S.C.; John H. Adler, a Member of the Senate of the State of New Jersey, and Wilbur C. Hantel, a Citizen of New Jersey, Plaintiffs-Appellants, and Edward T. O’connor, Jr., a Member of the Senate of the State of New Jersey, Plaintiff, v. John H. Dorsey, Individually and as a Member of the Senate of the State of New Jersey; Donald Di Francesco, Individually and as President and Member of the Senate of the State of New Jersey; William L. Gormley, Individually and as Chair of the Judiciary Committee and Member of the Senate of the State of New Jersey; And the Following Members of the Senate Judiciary Committee Severally and Individually; John O. Bennett, James S. Cafiero, John E. Dimon, John a Girgenti, Louis F. Kosco, Robert Martin, Bradford S. Smith, and Raymond J. Zane (Collectively the “primary Defendants”), Defendants-Respondents, and the Following Members of the Senate of the State of New Jersey Severally and Individually, C. Louis Bassano, Dr. Gerald Cardinale, Andrew R. Ciesla, Randy Corman, John H. Ewing, C. William Haines, Peter A. Inverso, Joseph M. Kyrillos, Jr., Richard J. La Rossa, Robert E. Littell, John J. Matheussen, Henry F. Mc ñamara, Joseph A. Palaia, William E. Schluter, John F. Scott, and Jack G. Sinagra (Collectively the “other Interested Defendants”), Defendants, and Richard J. Codey, Thomas F. Cowan, Matthew Feldman, Bernard F. Kenny Jr., Raymond J. Lesniak, Wy-Nona M. Lipman, John A. Lynch, Walter Rand, and Ronald L. Rice, Defendants-Respondents
- **Court:** Supreme Court of New Jersey
- **Decided:** December 23, 1993
- **Citations:** 134 N.J. 420; 634 A.2d 493; 1993 N.J. LEXIS 1311
- **Precedential status:** Published
- **Opinion:** Concurring in part by Handler
- **Judges:** Pollock, Handler
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752052

## How later opinions describe it (automated extraction)

- concluding that “the validity of the exercise of senatorial courtesy . . . does not implicate the privilege accorded to legislators under the [New Jersey Constitution’s] Speech and Debate Clause.”
- affirming, by an equally divided court, dismissal of complaint challenging exercise of “senatorial courtesy,” defining practice as “an unwritten, informal, and unofficial procedure allowing a single senator who resides in or represents any portion of the county in which a nomi…
- recognizing it is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed
- explaining that an appellate court "normally will not entertain cases when a controversy no longer exists"
- holding "[a] case is technically moot when the [] issue presented has been resolved, at least concerning the parties who initiated the litigation"

## Opinion text

HANDLER, J.,
concurring in part and dissenting in part.
At issue in this case is the constitutionality of senatorial courtesy, a practice that allows 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. Most recently, the practice of senatorial courtesy was threatened to block the reappointment of Judge Marianne Espinosa Murphy to the Superior Court. This suit was filed challenging the constitutionality of the practice of senatorial courtesy and its attempted exercise with respect to Judge Murphy’s nomination.
I conclude that the practice of senatorial courtesy is unconstitutional when the ultimate effect of its exercise is to veto a gubernatorial appointment without further action by the Senate. Senatorial courtesy directly violates the State Constitution because it authorizes the exercise of the confirmation power by a *444 single Senator. Nevertheless, in this case, the Senate did not exercise its confirmation power through senatorial courtesy but acted collectively as a legislative body in rejecting the nomination of Judge Murphy for reappointment. Consequently, although I disagree with the determination of the trial court and my concurring colleagues that this case is nonjusticiable, because Judge Murphy’s nomination was rejected by the entire Senate, I concur in the judgment to dismiss the complaint.
I
The concurring opinion and the trial court express the view that this case presents a nonjusticiable issue. That issue, most broadly stated, is whether courts have the authority to adjudicate a challenge to the constitutionality of the practice of senatorial courtesy and whether that practice is implicated by Senate action that rejects a judicial nomination. In my opinion, the constitutional doctrine of separation of powers, which enjoins deference by the judiciary toward the exercise of the powers vested in the other branches of government, does not, in the circumstances of this case, insulate this legal challenge from judicial review.
A.
As suggested by our decision in Gilbert v. Gladden, 87 N.J. 275 , 432 A.2d 1351 (1981), the question of justiciability truly lies at the end and not at the beginning of the analysis. Id. at 282 , 432 A.2d 1351 . The merits of the controversy in this case are inextricably intertwined with the issue of justiciability, and consequently consideration of justiciability requires simultaneous consideration of the merits of the issue in dispute.
1.
The United States Supreme Court in Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962), set forth a comprehensive standard for determining the justiciability of apparent political questions:
*445 Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
[Id. at 217, 82 S.Ct. at 709 , 7 L.Ed.2d at 686 .]
Baker has guided this Court in determining issues of justiciability. Gladden, supra, 87 N.J. at 275 , 432 A.2d 1351 . Under that standard, the analysis commences with the text of the State Constitution itself to determine initially whether the disputed governmental function, the confirmation power, has been vested in a particular branch of government and whether its exercise is subject to ascertainable and understandable standards imparted by the text of the Constitution.
Article six, section one, paragraph one, the Advice and Consent Clause of the New Jersey Constitution, states: “The Governor shall nominate and appoint, with the advice and consent of the Senate.” The text of the Constitution clearly commits the power of confirmation to the Senate. However, contrary to the suggestion of the concurring opinion, ante at 430, 634 A.2d at 498, the commitment of a power to another branch of government is not determinative of the claim of nonjusticiability, and does not end the inquiry. The necessary, further question is whether the Constitution, in making the commitment of a governmental power, itself affords standards that serve to limit or guide its exercise. As noted in Nixon v. United States, 506 U.S. -, -, 113 S.Ct. 732, 735 , 122 L.Ed.2d 1, 9 (1993), “the concept of a textual commitment ... is not completely separate from the concept of a lack of judicially discoverable and manageable standards.”
The salient inquiry is whether in committing the power to confirm gubernatorial nominations to the Senate, the constitutional text contains “judicially discoverable and manageable standards *446 for resolving [the question].” Baker, supra, 369 U.S. at 216 , 82 S.Ct. at 709 , 7 L.Ed.2d at 686 . The discovery of such standards is crucial to the issue of justiciability for, as we noted in Gladden , “in the absence of constitutional ... standards, it is not the function of this Court to substitute its judgment for that of the Legislature.” 87 N.J. at 282 , 432 A.2d 1351 .
The nature of a court’s search for manageable standards was usefully illustrated by the decisions of the United States Supreme Court in Powell v. McCormack, 395 U.S. 486 , 89 S.Ct. 1944 , 23 L.Ed.2d 491 (1969), and, most recently, in Nixon, supra, 506 U.S. at -, 113 S.Ct. at 732 , 122 L.Ed.2d 1 , and by our Court in Gladden, supra, 87 N.J. at 275 , 432 A.2d 1351 .
In Powell, supra, the Supreme Court held justiciable a dispute between the leaders of the United States House of Representatives and an elected representative, Adam Clayton Powell, Jr., over the qualifications necessary for being seated in the 90th Congress. The Supreme Court determined that the United States Constitution contained a textual commitment of the issue to the House in article I, section five, which empowers the House to “be the Judge of the Qualifications of its own Members.” 395 U.S. at 548 , 89 S.Ct. at 1978 , 23 L.Ed.M at 532. Further, the Supreme Court found that the commitment was subject to express standards set forth in the constitutional text itself concerning House membership. Because those standards could be reviewed and applied by the Court, the issue in dispute was justiciable.
In Nixon, supra, the Supreme Court considered whether United States Senate Rule XI, which allows United States Senate Committees to hear evidence against impeached persons, violated the Impeachment Clause. The Impeachment Clause, article 1, section 3, clause 6, provides: “the Senate shall have the sole Power to try all Impeachments.” The Court concluded that the Federal Constitution committed the impeachment power to the Senate, and, further, that the text disclosed no manageable standard for resolving the specific question before it, namely, whether fact-finding in an impeachment procedure was required to be *447 made by the Senate as a whole or could be delegated to a Senate Committee. 506 U.S. at -, 113 S.Ct. at 740 , 122 L.Ed.2d at 14 . Determination of the disputed question turned on the meaning of the constitutional term “try.” The Court refused to resolve the disputed issue of fact-finding in an impeachment proceeding by implying limiting standards to qualify the word “try” because the Impeachment Clause contained other specific express limitations on the Senate’s impeachment power, ie., the members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. Id. at-, 113 S.Ct. at 736 , 122 L.Ed. at 10. The Court also determined that the term “try” had no fixed meaning that would afford manageable judicial standards for determining how an impeachment case was required to be tried by the Senate and accordingly concluded that the interpretation of the term “try” must have been committed to the Senate. Thus the specific issue in dispute was nonjusticiable.
This Court took much the same approach in Gladden, supra, 87 N.J. at 275 , 432 A.2d 1351 . There the Court considered the “Presentment” Clause of article III, paragraph one, of the State Constitution. The specific dispute related to the practice of “gubernatorial courtesy,” whereby bills that have passed both houses are not presented to the Governor for signature until the Governor so requests; as a result those bills could be withheld from gubernatorial action and allowed to lapse. The Court found that the Constitution had committed the power of presentment to the Legislature. Further, because the Constitution contained no textual standard with respect to the timing of presentments to the Governor, the issue of timing itself had been “textually committed” to the Legislature as well and therefore was nonjusticiable. Id. at 283 , 432 A.2d 1351 .
The primary lesson of those decisions is that the analysis of justiciability concentrates initially and primarily on whether the subject-matter of the dispute has been constitutionally committed to another branch of government and whether practicable standards governing that subject-matter can be derived from the *448 constitutional text. A court can carry out that analysis properly only when it relates to the specific issue in dispute and the constitutional text that addresses that issue. In this case, therefore, we must limit our analysis to whether a single Senator by disapproving a gubernatorial nomination can exercise the Senate’s confirmation power, and to the exact constitutional text that relates to that issue.
2.
Constitutional interpretation, like statutory construction, commences with an unconstrained and sensible reading of the relevant language. Where that reading reveals language that has a plain meaning, one derived from ordinary usage and understanding based on common experience, courts need not resort to extrinsic aids or look at outside sources. See Vreeland v. Byrne, 72 N.J. 292, 302 , 370 A.2d 825 (1977). In such a case, “we inquire as to the meaning [that] the symbols of expression would most naturally and plainly convey [] the sense most obvious to the common understanding.” Gangemi v. Berry, 25 N.J. 1, 16, 134 A.2d 1 (1957).
In the context of the specific dispute posed by this case, the key term of the Advice and Consent Clause is “Senate.” According to the constitutional text, the Governor nominates and appoints; the Senate advises and consents. A plain meaning can be ascribed to the term “Senate.” The meaning of “Senate” that is conveyed by ordinary usage and common understanding is a multi-member legislative body that acts collectively to exercise its constitutional powers and perform its allotted governmental functions.
The principle of collectivity is derived from the fact that the Senate is a multi-member “body” or house of a bicameral legislature. See The Federalist Papers No. 67, at 410 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (hereinafter Federalist Papers). A “Legislature” is commonly understood to be “[t]he department, assembly, or body of persons that makes statutory laws for a state or nation.” Black’s Law Dictionary 811 (5th ed. 1979); see In re Hague, 105 N.J.Eq. 134, 147 A 220 (Ch.1929) *449 (noting that legislature is “the lawmaking body of the state”), aff'd, Ex parte Hague, 123 N.J.Eq. 475, 150 A 322 (E. & A.1930). Courts have interpreted the term “legislature” to denote a multimember entity that acts collectively. See, e.g., State ex rel. Carroll v. Becker, 329 Mo. 501 , 45 S.W.2d 533, 536 (The legislature is “a political body of persons. Appropriately, it could not mean merely the members of that body.”), aff'd, 285 U.S. 380 , 52 S.Ct. 402 , 76 L.Ed. 807 (1932); Commonwealth v. Hall, 291 Pa. 341 ,140 A 626, 630 (1928) (observing that the legislature is “a body to declare public policy of state”).
The principle of collectivity is further derived from the legislature’s representative relationship to the people. That representative responsibility of the Senate as a legislative body is at the heart of republican government. The United States Supreme Court described “state legislatures ... [as] the fountainhead of representative government in this country” and pointedly observed, “Representative government is in essence self-government through the medium of elected representatives of the people.” Reynolds v. Sims, 377 U.S. 533, 564 , 84 S.Ct. 1362, 1383 , 12 L.Ed.2d 506, 528-29 , reh’g denied, 379 U.S. 870 , 85 S.Ct. 12 , 13 L.Ed.2d 76 (1963). Because legislatures, under our republican form of government, “should be bodies which are collectively responsible to the popular will,” id. at 565, 84 S.Ct. at 1383 , 12 L.Ed.2d at 529 , they should be a large-enough “chosen body of citizens” to “guard against the cabals of a few.” Federalist Papers, supra, No. 10, at 82 (James Madison). Constitutional wisdom demands that a legislature’s public trust “should be placed not in a few, but in a number of hands.” Federalist Papers, supra, No. 37, at 227 (James Madison).
Legislative power in all its forms rests fundamentally on the legislature’s representative nature. See Gangemi, supra, 25 N.J. at 8-9 , 134 A.2d 1 . “Legislative power” must, therefore, be exercised “by an assembly.” Federalist Papers, supra, No. 83, at 509 (Alexander Hamilton). A legislature’s collective responsibility, however, attaches not only to the enactment of legislation. It *450 applies as well to its power to confirm gubernatorial appointments of public officials who must abide by the Constitution and serve the people in discharging their prescribed governmental functions. Like the legislative power itself, the Senate’s confirmation power is integral to the basic structure and logic of our republican form of government. That power, which serves as “a check upon [the executive] to prevent bad appointments,” “is one of the most delicate and difficult subjects” in the constitutional apportionment of vital governmental responsibilities. New Jersey Writers’ Project, Proceedings of the New Jersey State Constitutional Convention of 1844 356, 360 (1942). It can be “the surest guarantee of fidelity that can be afforded to the people.” Id. at 382. The confirmation power must, therefore, be exercised, in contrast to the executive’s appointive powers, by “a different and independent body[, which] is an entire branch of the legislature.” Federalist Papers, supra, No. 76, at 457-58 (Alexander Hamilton); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155-56 , 2 L.Ed. 60 (1803). The confirmation power under the State Constitution “mandates the Senate (not just one member) ... pass on the qualifications of nominees for State office.” Senatorial Courtesy: A Public Outrage, 112 N.J.L.J. 313 (Sept. 22 1983) (editorial).
Accordingly, the meaning of the term “Senate” as used in the Advice and Consent Clause of the State Constitution reflects the Senate’s inherent nature as a legislative body. The very legitimacy of the Senate as a constitutional actor is premised on its representative nature, and the validity of its actions, in turn, requires that it act collectively as a body with respect to the exercise of its constitutional powers.
The concurring opinion states that the term “Senate” cannot be invested with a meaning that requires collective action as a legislative body. It believes that Nixon supports that conclusion. Ante at 433-436, 634 A.2d at 500-501. I disagree.
The Supreme Court in Nixon, supra, found no standard in the constitutional text that would require the Senate as a whole to perform the specific function of fact-finding as an incident to the *451 exercise of the impeachment power. Accordingly, it refused to interpret “Senate” to require that the whole Senate undertake fact-finding as a basis for impeachment or to read into the word “Senate” a specific limitation barring the delegation of particular incidental impeachment functions. 506 U.S. at -, 113 S.Ct. at 732 , 122 L.Ed. 2d at 11 . The Supreme Court made not the slightest suggestion in Nixon that the ultimate exercise of the impeachment power could be undertaken without collective action by the entire Senate or that the validity of such action would not be subject to judicial review. Thus, as pointed out by Justice White, concurring in Nixon , “[w]ere the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House, it is quite clear that the Senate will have failed to ‘try’ impeachments.” 506 U.S. at -, 113 S.Ct. at 744 , 122 L.Ed.2d at 20 . The fact is, in Nixon , the entire Senate undertook to exercise directly its impeachment authority. 1
Consistent with the analysis invoked in Nixon , the Advice and Consent Clause of the State Constitution has no express limitations with respect to any aspect of the exercise of the Senate’s confirmation powers that militate against invoking a standard derived from the commonsense and natural meaning of the term “Senate,” namely, a legislative body that must act collectively through its members in performing its governmental functions. That standard would not foreclose the Senate from adopting ancillary rules for procedures that would authorize the delegation of functions incidental to the ultimate exercise of its confirmation powers. That standard, however, would foreclose the ultimate exercise of the confirmation power without full Senate action.
*452 The trial court’s conclusion, apparently endorsed by the concurrence, ante at 436-437, 634 A.2d at 501, that the constitutional history of the Senate’s confirmation powers demonstrates approval of the practice of senatorial courtesy, poses a further issue. As a settled matter of constitutional interpretation, a court need go no further than the text when the text itself affords a clear and sensible meaning that can be ascribed to the Constitution. Nevertheless, fairly read, the constitutional history surrounding the enactment of the Advice and Consent Clause is much too general and uncertain to support the conclusion that senatorial courtesy, which eliminates action by the full Senate and sanctions the exercise of the Senate’s confirmation power by a single Senator, was adopted as a constitutional principle.
The Senate’s confirmation power was first created under the 1844 Constitution. Although the 1844 framers were at least aware of the practice of senatorial courtesy based on federal experience, Passaic County Bar Ass’n v. Hughes, 108 N.J.Super. 161, 168-71 , 260 A.2d 261 (Ch.Div.1969); Kligerman v. Lynch, 92 N.J.Super. 373, 375-76 , 223 A.2d 511 (Ch.Div.1966), cert, denied, 389 U.S. 822 , 88 S.Ct. 49 , 19 L.Ed.2d 74 (1967); see Joseph P. Harris, The Advice and Consent of the Senate 40 (1953); Michael J. Feehan, Comment, The Role of Advice and Consent: Senatorial Discourtesy, 10 Seton Hall L.Rev. 117, 120 (1979) (hereinafter Senatorial Discourtesy), nothing indicates that the practice was actually considered or discussed when that Constitution was adopted. Senatorial Courtesy, supra, 15 Rutgers L.J. at 984.
The history surrounding the current Constitution is also problematic. The State Constitution that was proposed in 1944 included a provision abolishing senatorial courtesy. The proposed constitution was defeated by the citizens, without any evident focus or emphasis on the Senate’s confirmation power. Further, in 1947, when the Constitutional Convention met again, “senatorial courtesy was not widely discussed at the convention.” Senatorial Discourtesy, supra, 10 Seton HaM L.Rev. at 131. The Convention’s discussions tended to focus on whether to impose time constraints *453 on the Legislature’s exercise of advice and consent. See ante at 436, 634 A.2d at 501. The delegates never squarely confronted the issue of whether to endorse or even to condemn the practice of senatorial courtesy. Thus, one cannot soundly conclude that the constitutional framers somehow approved, ratified, or adopted the exercise of senatorial courtesy as a constitutional tenet.
The principal test used in the analysis of justiciability — whether the constitutional text commits an issue to another branch of government without judicially discoverable and manageable standards — is met in this case. Such a standard governing the exercise of the Senate’s confirmation power is derived from the plain meaning of the term “Senate.” That standard imposes a minimum requirement for the exercise of the confirmation power: collectivity. Importantly, that standard, although general, is not so vague as to be unmanageable. As the concurring opinions in Nixon illustrate, a standard applicable to a specific governmental function may in some instances impose only minimal requirements for its exercise, while leaving unconstrained other aspects of the more general governmental power. E.g., Nixon, supra, 506 U.S. . at -, 113 S.Ct. at 744 , 122 L.Ed.2d at 20 (White, J., concurring); id. at -, 113 S.Ct. at 748 , 122 L.Ed.2d at 24 (Souter, J., concurring).
Further, the dispute in this case is not rendered nonjusticiable under the other criteria of the justiciability doctrine. An adjudication of that issue in this case would not engender a potential for “embarrassment from multifarious pronouncements by various [governmental] departments.” Baker, supra, 369 U.S. at 216 , 82 S.Ct. at 709 , 7 L.Ed.2d at 686 . Nor would there be any “unusual need for unquestioning adherence to a political decision already made.” Ibid. Although the subject matter is sensitive and controversial, a judicial determination regarding senatorial courtesy according to a constitutional standard would not be “of a kind clearly for nonjudicial discretion.” Ibid. Finally, the determination that the confirmation power requires collective action by the Senate as a whole according to a constitutional standard would in *454 no way signify a “lack of respect due coordinate branches of government.” Ibid.
In sum, the standard of collectivity derived from the Advice and Consent Clause requires only 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. In light of that standard, the specific issue in dispute in this case is amenable to judicial review and satisfies the criteria for justiciability.
3.
The concurring opinion is comfortable with the view that the Senate’s exercise of its confirmation powers is never the business of judges and is best left to the Senate. Ante at 429, 634 A.2d at 498. Yet it concedes that if the exercise of that power is sufficiently egregious, it can be subject to judicial review. Ante at 438, 634 A.2d at 502. The concurrence also illustrates its point by referring to the observation of Justice Souter, concurring in Nixon , that “[i]f the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a ‘bad guy", judicial interference might well be appropriate.” Id., 506 U.S. at -, 113 S.Ct. at 748 , 122 L.Ed.2d at 24 . The concurrence does not explain why the practice of senatorial courtesy that results in the final rejection of a gubernatorial nomination by a single Senator is not an egregious distortion of the Senate’s confirmation powers or does not threaten the integrity of the constitutional scheme for judicial nominations.
Further, the relatively few cases dealing with the governmental appointive powers do not demonstrate that the issue of senatorial courtesy is nonjusticiable: Loigman v. Trombadore, 228 NJ.Super. 437, 550 A.2d 154 (App.Div.1988); Passaic County Bar Ass’n, supra, 108 N.J.Super. at 161 , 260 A.2d 261 ; and Kligerman, supra, 92 N.J.Super. at 373 , 223 A.2d 511 . Although those decisions are instructive, they nevertheless are distinguishable and *455 do not support the conclusion that the challenge to senatorial courtesy presented in this case is nonjusticiable.
Loigman, supra, concerned a suit to prevent the Governor from soliciting information about potential judicial nominees from the State Bar Association. 228 N.J.Super. at 437 , 550 A.2d 154 . The court first scrutinized the text of article VI, Section VI, paragraph 1 of the New Jersey Constitution. It determined that the issue had been committed to the Governor and that the constitutional text did not impose any restrictions on the sources of information the Governor might use in considering a judicial nominee. Id. at 443, 550 A.2d 154 . Accordingly, it concluded that the dispute was nonjusticiable.
Kligerman, supra, addressed the issue of whether reasons were required in the exercise of the Senate’s confirmation power. 92 N.J.Super. at 373 , 223 A.2d 511 . The court determined that the text of the Advice and Consent Clause offered no guidance on the substantive basis for the exercise of the Senate’s confirmation power. It found that “the mere act of confirmation or rejection by the Senate, for whatever reasons and in whatever manner, is sufficient to meet the requirements of said clause.” Id. at 377 , 223 A.2d 511 .
The issue in this case may be distinguished from those in Loigman and Kligerman . The appeal focuses only on whether the ultimate exercise of the confirmation power must be undertaken collectively, an issue that is directly informed by a standard based on the plain meaning of the constitutional term “Senate.”
Finally, in Passaic County Bar Ass’n, supra, the court considered senatorial courtesy in the broader context of whether the failure to exercise the Senate’s confirmation power was justiciable. 108 NJ.Super. at 161, 260 A.2d 261 . The court found no “judicially discoverable and manageable standard” in the Advice and Consent Clause with reference to the issue of delay. Id. at 173 , 260 A.2d 261 . Consequently, the court concluded that a charge that senatorial courtesy unconstitutionally delayed the process of judicial appointments was nonjusticiable. Ibid.
*456 The Court, here, in contrast to Passaic County Bar Ass’n , addresses neither a ease in which the Senate has taken no action whatsoever with respect to a gubernatorial judicial appointment nor a situation in which the Senate simply chooses to delay taking action. Concededly, at times a court may encounter difficulty in identifying whether it is confronted with Senate inaction or merely with delay with respect to judicial nominations. Ante at 432, 634 A.2d at 499. However, this case does not present such a predicament because the Senate’s vote on the motion that foreclosed further consideration of the nomination constituted not simply inaction or delay but final action rejecting the nomination by the entire Senate.
B.
Defendants also contend that senatorial courtesy is beyond review by the judiciary because it constitutes an internal rule of procedure. In my view, the practice of senatorial courtesy can be subject to judicial review because it does not devolve from the constitutional right of each house of the Legislature to “determine the rules of its proceedings.” N.J. Const. art. IV, § 4, cl. 3. See, e.g., Gladden, supra, 87 N.J. at 275 , 432 A.2d 1351 (acknowledging that unwritten practice of gubernatorial courtesy that could result in “pocket veto” of legislative bills was tantamount to legislative rule or procedure).
Courts readily acknowledge the breadth of legislative rulemaking governing internal legislative procedures. E.g., Reilly v. Ozzard, 33 N.J. 529 , 166 A.2d 360 (1960); In re Ross, 86 N.J.L. 387, 391 , 94 A. 304 (Sup.Ct.1914); State v. Rogers, 56 N.J.L. 480, 631 , 28 A. 726 (Sup.Ct.1884); Gewertz v. Joint Legislative Comm., 132 N.J.Super. 435 , 334 A.2d 64 (App.Div.), certif. denied, 68 N.J. 156 , 343 A.2d 444 (1975); see Parker v. Merlino, 646 F.2d 848, 854-55 (3rd Cir.1981). Because a practice reflects a legislative rule or procedure does not mean, however, that application of the rule or procedure is immune from judicial review. A legislative procedural rule is subject to judicial review if “there is an obvious *457 violation of fundamental rights.” 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 stated in Rogers, supra, 56 N.J.L. at 616 , 28 A. 726 , “[W]hen 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 within the judicial department of the government.” See Parker, supra, 646 F.2d at 855 ; Wilentz ex rel. Golat v. Stanger, 129 N.J.L. 606, 617 , 30 A.2d 885 (E. & A.1943).
In this case, however, the specific issue is whether the actions taken by the Senate with respect to Judge Murphy’s nomination were inconsistent with the constitutional standard that the confirmation power must be exercised collectively by the Senate as a legislative body. That issue cannot escape judicial review simply because the action of the Senate allegedly conformed to an internal rule of procedure.
C.
The exercise of senatorial courtesy is not immune from judicial review under the Speech and Debate Clause of the State Constitution, a proposition contested by defendants. That clause provides that “for any statement, speech or debate in either house or at any meeting of a legislative committee [legislators] shall not be questioned in any other place.” N.J. Const, art. I, cl. 6.
In Van Riper v. Tumulty, 26 N.J.Misc. 37, 56 A.2d 611 (Sup.Ct. 1948), the court held that an Assemblyman’s statements in a resolution before the Judiciary Committee of the General Assembly had been privileged as “speech or debate.” Similarly, in Cole v. Richards, 108 N.J.L. 356 , 158 A. 466 (E. & A1932), the Speech and Debate Clause immunized a State Senator from a slander action for his statement on the Senate floor charging an attorney with forging the Senator’s name to court papers. The clause was also found to immunize a state legislator from liability for damages in a civil suit under the federal Civil Rights Act. Gewertz v. Jackman, 467 F.Supp. 1047 (D.D.C.1979); see also Lake Country *458 Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 , 99 S.Ct. 1171 , 59 L.Ed.2d 401 (1979) (holding state legislators immune from federal damage liability under state Speech and Debate Clause).
However, the immunity of the Speech and Debate Clause is not absolute. See, e.g., In re Grand Jury Proceedings (Cianfrani), 563 F. 2d 577, 580-81 (3rd Cir.1977) (finding state legislators not immune under federal Speech and Debate Clause for criminal conduct prohibited by congressional acts); State v. Gregorio, 186 N.J.Super. 138, 152-53 , 451 A.2d 980 (Law Div.1982) (holding that state Speech and Debate Clause was no defense to indictment of legislator for submission of false financial-disclosure statements).
The issue of the validity of the exercise of senatorial courtesy in this case does not implicate the privilege accorded to legislators under the Speech and Debate Clause. The Court in determining that issue need not concern itself at all with any “integral part of the deliberative and communicative process” of the Senate, see Gravel v. United States, 408 U.S. 606, 625 , 92 S.Ct. 2614, 2627 , 33 L.Ed.2d 583, 602 (1972), or probe the motivations behind individual or collective Senate conduct. Rather, the issue presented requires a judicial determination limited to only whether certain action taken by or attributable to the Senate is valid as measured by a constitutional standard that governs that action.
D.
In summary, the issue in dispute in this case — the constitutionality of the Senate’s rejection of Judge Murphy’s nomination based on Senator Dorsey’s assertion of senatorial courtesy and subsequent Senate action to foreclose consideration of the nomination— is justiciable; and, further, the issue is not immunized from judicial review by other provisions of the State Constitution protecting internal legislative rules of procedure and legislative prerogatives of speech and debate.
Under our Constitution, the Senate is granted the power of advice and consent with regard to gubernatorial nominations, *459 including judicial nominations. The constitutional text of the confirmation power uses the term “the Senate,” which has a plain meaning and imports a definitional standard that is applicable to the exercise of that power. That standard denotes that the exercise of the confirmation power with respect to judicial nominations requires collective action by the Senate as a whole in its capacity as a legislative body.
V
Our concurring colleagues contend that the Senate as a whole failed to act formally to reject the nomination of Judge Murphy because its vote on a motion that would have referred the nomination to the Senate Judiciary Committee, Senate Resolution 99 (S.Res. 99), did not constitute final action. Ante at 437-438, 634 A.2d at 502. I disagree.
The concurrence reasons that because approval of the reference motion would not itself constitute a confirmation of Judge Murphy’s nomination, the disapproval of the motion cannot constitute a rejection of the nomination. Ante at 438, 634 A.2d at 502. That assessment of the Senate’s action does not square with the reality.
The record reveals that on July 27, 1993, Senator Lesniak introduced S.Res. 99. The resolution directed the Senate Judiciary Committee to schedule a committee meeting to consider the reappointment of Judge Murphy on or before August 23, 1993, and to forward its recommendations concerning the reappointment to the full Senate on or before September 1, 1993.
On August 16,1993, Senator Lesniak made a motion to have the full Senate pass on S.Res. 99, under Senate Rule 128, which permits a resolution to be taken up as an “order of a particular day, on which day it shall be taken up, whether or not it is upon the Calendar for said day, in preference to any other whether or not they are on the Calendar.” Fitzgerald’s Legislative Manual, State of New Jersey 327 (1993). Senate President DiFrancesco ruled out of order the motion to advance S.Res. 99. Senator *460 Lesniak then moved to appeal the ruling of Senate President DiFrancesco on the Senate floor under Senate Rule 21, which authorizes the Senate President to “decide questions of order without debate, subject to an appeal to the Senate.” Id. at 308. That motion to overturn the Senate President’s order failed by a vote of 12-22. The Senate did not again consider Judge Murphy’s nomination.
The content of the reference motion itself demonstrates clearly that its disapproval would effectively be the death-knell of the nomination. Further, as Senator Dorsey stated, the Senate clearly understood that its rejection of the reference motion meant the defeat of Judge Murphy’s nomination. Thus, the action by the Senate on the reference motion, though procedural in form, had the effect of vetoing the nomination. That effect was a final rejection of the nomination because no further steps by the Senate were required to end consideration of the nomination. Because that action was taken by the Senate as a whole and it was final in its effect on the nomination, it meets the basic constitutional standard for the exercise of the advice and consent power.
The concurring opinion decries the fact that the Court cannot know the reasons that may have actuated the Senate, and therefore the Senate’s disapproval of the reference motion cannot be considered an action on the nomination. Ante at 437, 634 A.2d at 502.
The constitutional text is utterly silent with respect to whether consideration of the merits of a gubernatorial nomination or the expression of reasons are essential to the exercise of the confirmation power. Thus, the Court cannot undertake to decide whether the Senate in a given case actually considered a nomination on its merits or invoked any substantive standards or had adequate reasons in taking action that has the effect of blocking such a nomination. See Kligerman, supra, 92 N.J.Super. at 373 , 223 A.2d 511 (determining that rejection of judicial nomination for personal reasons attributable to one Senator presented nonjusticiable dispute because only way to answer question raised would be *461 to delve into thought process of each Senator voting against nomination to determine basis for rejection). In this case, the Senators who voted may not have fully understood or appreciated the constitutional significance of their votes as an actual exercise of the Senate’s confirmation power. Nevertheless, that circumstance does not warrant a determination that the Senate’s action should be characterized as merely procedural, and therefore ineffective as a final rejection of the nomination by the Senate as a whole.
That is not to say that if the Senate in the exercise of its confirmation powers rejected a gubernatorial nomination for invidious reasons, such as those delineated in our Law Against Discrimination, N.J.S.A. 10:5-1 to -12, our courts would be helpless to respond. The courts would have an obligation to act in the matter, an obligation devolving directly from the Constitution itself. See, e.g., Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55 , 389 A.2d 465 (1978); Booker v. Bd. of Educ., 45 N.J. 161, 174 , 212 A.2d 1 (1965). Indeed, at oral argument, counsel for defendants at oral argument conceded that Senate action based on such reasons would be cognizable by the courts. Further, the concurrence acknowledges that an exercise of the confirmation power that violates fundamental rights would be subject to judicial review. Ante at 439-441, 634 A.2d at 503-504.
We are not confronted, in this case, however, with conduct by the Senate actuated by constitutionally-base reasons. The Court, therefore, cannot otherwise inquire into the adequacy of the reasons that may in fact have prompted the Senate’s determination to scuttle Judge Murphy’s nomination. The power of advice and consent is that of the Senate, which constrains this Court to limit its inquiry only to whether the Senate in a given case acts in accordance with the basic standard of collective action governing the exercise of that power. To do more would violate the delicate balance envisioned by the framers of the State Constitution.
The Acting Attorney General has taken the position that the Senate’s refusal to act on Judge Murphy’s nomination is invalid *462 because senatorial courtesy is an improper delegation of the senatorial confirmation power to a single Senator. He stresses that the power of the Senate as a whole to override senatorial courtesy does not rectify its exercise. In other contexts the mere existence of a residual power, which remains unexercised, cannot otherwise validate an unconstitutional exercise of that power. See, e.g., General Assembly v. Byrne, 90 N.J. 376 , 448 A.2d 438 (1982) (holding that retained power by legislature to enact legislation to overrule administrative regulations did not validate the improper exercise of that power by joint resolution); In re Karcher, 190 N.J.Super. 197, 210 , 462 A.2d 1273 (App.Div.1983) (finding as violative of bicameralism an attempt by legislature to entrust subcommittee with ability to act for legislature), aff'd in part and rev’d in part, 97 N.J. 483 , 479 A.2d 403 (1984); see also Inganamort v. Borough of Fort Lee, 72 N.J. 412 , 371 A.2d 34 (1977) (ruling that although municipality had power to pass rent-control legislation by ordinance — complete with notice and public hearing — it could not simply extend existing rent-control legislation by resolution).
In this case, however, the reserved power of the Senate to act directly in the face of senatorial courtesy did not remain unexercised. Rather, the Senate acted collectively in its determination not to consider the nomination. The Court, therefore, is not confronted with a traditional exercise of senatorial courtesy in which the rejection of the nomination is based solely on the disapproval of that nomination by a single Senator without further Senate action.
In sum, the action by the Senate in refusing to adopt the motion of Senator Lesniak, which would have allowed further consideration of the nomination of Judge Murphy, effectively rejected the nomination and constituted a refusal to consent to the nomination. That action was taken by the entire Senate and constituted collective action on its part as a legislative body. It thus was a permissible exercise of the Senate’s power under the Advice and Consent Clause.
*463 VII
The concurrence invokes the wisdom of the venerable James Bradley Thayer to explain its decision not to decide this case. Ante at 439, 634 A.2d at 503. Justice Felix Frankfurter, Thayer’s intellectual heir, wrote a passionate dissent in Baker v. Carr expressing similar views to justify the refusal of the Court to review the thorny question of whether legislative representation violated the constitutional right to vote. He condemned an intemperate exercise of judicial review that would involve the Court in such a “political thicket.” Colegrove v. Green, 328 U.S. 549, 555 , 66 S.Ct. 1198, 1201 , 90 L.Ed. 1432, 1436 (1946) (Frankfurter, J., concurring); see Alexander M. Bickel, The Least Dangerous Branch 35 (1962).
The views now expressed in the concurring opinion are reminiscent of Justice Frankfurter’s. Just as the concurrence believes judicial review in this case would be intemperate and doubts the existence of a basic and broad constitutional standard that can be used to gauge the validity of the Senate’s exercise of its confirmation power, Justice Frankfurter doubted the capacity of the Court to find a principle to define the franchise. Such a standard — “one person, one vote” — was later announced in Reynolds v. Sims. 377 US. at 558, 84 S.Ct. at 1380 , 12 L.Ed.2d at 525 .
Over time, the view expressed by Justice Frankfurter has come to be read as a “sorry confession of judicial impotence,” to adopt a phrase used by Justice Frankfurter to criticize the majority in Baker, supra, 369 U.S. at 270 , 82 S.Ct. at 739 , 7 L.Ed.2d at 716 (Frankfurter, J., dissenting); see John Hart Ely, Democracy and, Distrust 121 (1980). The standard announced in Reynolds v. Sims, derived from bedrock principles of representative democracy, has become a hallmark of contemporary representative government. The constitutional principle of collectivity, which marks the distinctive governmental responsibility of the legislature, is similarly implicit in the logic and spirit of representative democracy.
Professor Thayer warned of “detailed prohibitions” that would result in intrusive judicial supervision of other branches of govern *464 ment, rendering them “petty and incompetent.” James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 156 (1893). The principle of collectivity is the core of constitutionally-prescribed legislative action. It is an essential corrective against a government that would be self-serving and indifferent to the popular will. A standard based on that principle affords a generous measure of the legitimacy of legislative action. It does not, perhaps as feared by the concurrence, portend a suffocating superintendence or an intrusive meddling by the judiciary that would render government “petty and incompetent.” As applied to the Senate’s exercise of its advice and consent power, such a principled standard, in the words of Justice Mountain, gives meaning to one of those “great ordinances” of the Constitution, which not only sanctions but indeed requires a forthright exercise of judicial review to assure fidelity to the Constitution. Vreeland supra, 72 N.J. at 305, 370 A.2d 825 .
The Court should recognize its fundamental power and obligation to construe the meaning of the New Jersey Constitution. Vreeland supra, 72 N.J. at 292, 370 A.2d 825 . The concurrence observes that sometimes the hardest decision is the decision not to decide. Ante at 443, 634 A.2d at 505. But of course the converse is equally true — sometimes the hardest decision is the decision to decide. It is not easy to find the middle ground between judicial abnegation and judicial arrogation. It is hard to know when judicial restraint lapses into judicial passivity, just as it is to know when judicial action crosses over to judicial zeal. But the judicial responsibility to find and keep that middle ground cannot be sloughed. The enterprise of judicial review functions to ensure that governmental action remains within constitutional bounds. General Assembly, supra, 90 N.J. at 391 , 448 A.2d 438 . If one branch of government improperly exercises its constitutional powers, that exercise upsets the balance of powers among the respective branches. N.J. Const, art. Ill, ¶ 1; see Communication Workers of Am. v. Florio, 130 N.J. 439, 467 , 617 A.2d 223 (1992).
*465 The power of confirmation is conferred by the Advice and Consent Clause of the State Constitution to the Senate as a whole to act collectively as a legislative body with respect to the confirmation of judicial nominations. This Court should acknowledge its responsibility to make that determination and to declare the principles that express the mandate of the Constitution. It would follow, and the Court should so rule, that the Senate in its capacity as a legislative body did act in accordance with constitutional standards when it collectively rejected the nomination of Judge Murphy for reappointment. That declaration and ruling would afford the Senate a constitutional benchmark to guide in the future its exercise of the constitutional authority to advise and consent.
Accordingly, I concur in part and dissent in part from the affirmance of the judgment below.
Justices O’HERN and STEIN join in this opinion.
CLIFFORD, POLLOCK and GARIBALDI, JJ., concurring.
HANDLER, O’HERN and STEIN, JJ., concurring in part and dissenting in part.
For affirmance — CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6
For reversal — None.
In Nixon , the full Senate was presented with a report and complete transcript of the proceedings, a well as with extensive final briefs. Three hours were allotted for oral argument on the Senate floor. The Senate voted to convict Judge Nixon on two articles by more than the mandatory two-thirds vote. 506 U.S. at -, 113 S.Ct. at 735 , 122 L.Ed. at 8.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752052. Public record. Not legal advice.