Depleted N.J. Supreme Court will get 2 justices after Senate confirms them, ending logjam

Published: Oct. 17, 2022

New Jersey’s depleted state Supreme Court will soon get two new justices after the state Senate confirmed Rachel Wainer Apter and Douglas Fasciale on Monday, formally breaking a political logjam that left the state’s highest court with an unprecedented three vacancies for much of the year.

The Democratic-controlled Senate voted 23-14 along party lines to approve Wainer Apter, a civil rights attorney whose nomination had stalled for a year and a half after Gov. Phil Murphy, a fellow Democrat, picked her for the post.

Republicans once again voiced concerns that she is too liberal for New Jersey and lacks sufficient trial experience. All but one GOP senator — Robert Singer of Ocean County —voted against her.

By contrast, the Senate voted 37-0 to approve Fasciale, a Republican who has served the last 18 years as a judge on the Union County Superior Court and the state’s Appellate Division, as well as an interim justice on the Supreme Court the last two months. Murphy nominated him last month to officially join the high court as part of a bipartisan deal to end the stalemate over Wainer Apter.

Wainer Apter, 42, and Fasciale, 62, still have to be sworn in before officially becoming justices. That’s expected to happen Friday.

Murphy said in a statement Monday he has “complete confidence” Wainer Apter and Fasciale will “serve our state and the cause of justice with distinction.”

“They are both incredible legal talents, having already proven their intellects in different parts of our legal system,” the governor said. “Moreover, they are both exceptionally good people, deserving of this honor.”

“The addition of Justice Wainer Apter and Justice Fasciale to our high court guarantees that the hard work of ensuring equal justice for all residents can continue unabated,” he added. “Moreover, at a time when faith in many of our nation’s core democratic institutions is in doubt, most distressingly the United States Supreme Court, their confirmations send a strong message that in New Jersey we continue our proud tradition of a balanced Supreme Court, choosing our justices across party lines from the best lawyers and judges in our state.”

Wainer Apter will fill the seat of Jaynee LaVecchia, an independent who retired at the end of last year. Fasciale will fill the seat of Faustino Fernandez-Vina, a fellow Republican who retired earlier this year.

Both will be appointed to seven-year terms on the Supreme Court and then have to be reconfirmed to continue serving. Judges can serve until the state’s mandatory retirement age of 70, meaning Wainer Apter could sit for decades and Fasciale would see less than a decade on the bench.

Monday’s confirmations leave one vacant seat remaining on the seven-member court, currently filled by a temporary judge. It’s unclear when Murphy will nominate someone to formally fill the seat.

The vote ended an 18-month journey for Wainer Apter, whom Murphy first nominated in March 2021 and then renominated in January after the selection stalled thanks to a political tradition known as senatorial courtesy — in which a senator from a nominee’s home county can block a nomination without having to a give a particular reason.

In Wainer Apter’s case, state Sen. Holly Schepisi, R-Bergen, refused for months to let the nomination move forward, fearing the nominee’s policies and stances were too liberal and citing concern about the court’s makeup.

New Jersey governors and top lawmakers have traditionally sought to keep a partisan balance on the Supreme Court, with one party having no more than four seats — though there is no law requiring it. Monday’s confirmations will shift the makeup of the court to four Democrats and three Republicans. But Murphy will also get to nominate three more justices before his second term ends in 2025, meaning he will have picked five justices in total, giving him a hand in shaping the court for years to come.

As Wainer Apter’s nomination continued to be in limbo, two other Supreme Court justices retired this year: Fernandez-Vina and Barry Albin.

Chief Justice Stuart Rabner plucked Fasciale and two other senior jurists on the Appellate Division to temporarily fill the three vacant seats.

The political holdup finally ceased last month after several weeks of negotiations between Schepisi and Murphy’s office, with Schepisi saying she would allow Wainer Apter to get a hearing. Within 10 days, Murphy announced he would nominate a Republican, Fasciale, to take Fernandez-Vina’s seat.

Murphy on Monday praised “the extraordinary grace and fortitude that Rachel has demonstrated over the last year and a half as she waited for this day.”

“This display of character has made me even prouder to have put her name forward,” the governor said.

At Wainer Apter’s confirmation hearing before the Senate Judiciary Committee last Thursday, Republicans pressed her for over two hours, expressing concerns she would legislate from the bench.

There was similar worry Monday on the Senate floor. Sen. Michael Doherty, R-Warren, said he would not vote for Wainer Aprter because the sum total of “her legal career, whether in private practice, with the ACLU, or as director of the Division of Civil Rights, has been the misuse of litigation and manipulation of the courts to compel social change.”

Sen. Kristin Corrado, R-Bergen, took issue with how in a 15-year career, only three years of Wainer Apter’s tenure has been focused on the Garden State.

“Her legal footprint is so tiny she has yet to make a mark,” Corrado said.

Sen. Jon Bramnick, R-Union, also cast a no vote, even though he voted yes when her nomination was approved by the Senate Judiciary Committee last week.

Although Wainer Apter is “intellectually qualified,” Bramnick said, “there is no evidence of moderation.”

She appears “out of step with the middle of the Democratic Party,” Bramnick said.

Sen. Michael Testa, R-Cumberland said she seemed more interested in setting law and policy than interpreting law and adjudicating disputes.

“My fear is we are going to have a legislator wearing a robe,” Testa said.

No Democrats spoke out to defend Wainer Apter, although they voted to approve her appointment.

Wainer Apter said during her hearing last week she would follow all U.S. Supreme Court precedent.

“I would fairly apply all U.S. Supreme Court decisions if confirmed,” she said.

Wainer Apter, who grew up in Rockaway and now lives in Englewood, previously served as a senior staff attorney at the American Civil Liberties Union’s national office, and later as director of the New Jersey Division on Civil Rights in the state Attorney General’s Office. There, she led the New Jersey team that defeated a motion by Texas and seven other states to end Deferred Action for Childhood Arrivals, known as DACA.

She also clerked for Justice Ruth Bader Ginsburg on the U.S. Supreme Court, Judge Robert Katzmann on the U.S. Court of Appeals for the Second Circuit, and Judge Jed Rakoff on the U.S. District Court for the Southern District of New York after law school at Harvard.

“Serving on the (New Jersey Supreme) Court is the most important trust that can be put in an attorney in our state,” Wainer Apter, a mother of three young children, said last week. “I believe serving as an Associate Justice would be the highest and best use of whatever skills and abilities I may have to serve the people of New Jersey.”

Republicans roundly commended Fasciale on Monday. And state Senate President Nicholas Scutari — a Democrat and fellow Union County resident who pushed for Fasciale’s nomination — called him “one of the finest judges we have in the state of New Jersey.”

Scutari hugged Fasciale after the vote.

Fasciale is the son of an Italian father who met his Jersey City bred-Italian mother after immigrating to Ellis Island. He was nominated by then-Gov. Jim McGreevey, a Democrat, to the state Superior Court in 2004 and renominated by then-Gov. Chris Christie, a Republican, in 2011.

“As someone who spent 17 years as a litigator and trial attorney in New Jersey courts, and then 18 years as a judge at different levels in our judiciary, I have devoted my entire career to the legal system of our state,” Fasciale, of Westfield, said after Murphy nominated him last month. “I’m grateful to have the opportunity to continue this service by sitting on our state’s highest court — a court with a national reputation for excellence.”

It’s unclear when Murphy will nominate a justice to fill the last vacancy on the court. Scutari said he does “not know where he is on that process.”

“We wanted to get this logjam done,” the Senate president said.

Murphy’s first nominee to the Supreme Court, Fabiana Pierre-Louis, was confirmed in 2020, becoming the first Black woman to serve on the court in New Jersey history.

In addition to the Supreme Court confirmations, the Senate on Monday also confirmed seven judges for tenure on the state Superior Court to help fill the depleted lower courts: Aimee R. Belgard of Edgewater Park; Craig L. Corson of Milltown; Therese A. Cunningham of Toms River; James H. Pickering of South Seaville; Kathy C. Qasim, of Edison; Guy P. Ryan of Pine Beach; and Robert G. Wilson of Somerville.

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published this page in News and Politics 2022-10-18 04:19:50 -0700