Murphy may have to re-nominate N.J. Supreme Court pick or make another choice

After being stalled for nearly 10 months, it appears unlikely Gov. Phil Murphy’s latest nominee to the New Jersey Supreme Court will be confirmed in the final week of the current legislative session.

What happens next is one of a few questions regarding the makeup of the state’s highest court — and the significant role Murphy will play in shaping it as he begins his second term.

Murphy nominated civil rights attorney Rachel Wainer Apter, a fellow Democrat, last March to succeed Justice Jaynee LaVecchia, an independent who left the bench Friday. But it’s up to the state Senate to confirm her, and that hasn’t happened with just eight days to go before the current lame-duck voting session ends at noon Jan. 11 and the next state Legislature is sworn in.

If the Senate doesn’t take up the nomination before then, Murphy will either have to re-nominate Wainer Apter or nominate someone else in the new session.

In an interview with NJ Advance Media on Monday, outgoing Senate President Stephen Sweeney, D-Gloucester, suggested her confirmation is improbable in the next week because state Sen. Holly Schepisi, R-Bergen, has not signed off on the nomination. Sweeney said he “doubts” Schepisi’s position will change “at this point.”

In New Jersey, senators from a nominee’s home county have senatorial courtesy, meaning they can stop that nominee from advancing. Wainer Apter lives in Bergen County, parts of which Schepisi represents.

“It’s not me,” added Sweeney, who is set to leave office Jan. 11 after losing re-election. “I committed from the day he nominated her that I’d put her up as soon as she was ready.”

Schepisi told NJ Advance Media she is having “continuing communications with the governor’s office regarding ensuring balance” on the Supreme Court. The senator also said she has concerns about “some of the positions” Wainer Apter has advocated for in the past, though she did not specify which.

“We’ve had some pretty robust discussions regarding (the nomination),” Schepisi said. “There is potentially a pathway to get my support. But we still have some work to do to get there.”

“Our Supreme Court has extraordinary power,” she added. “If we’re going to put someone on here who could be there for three decades shaping policy, we need to ensure it’s a balanced judiciary and it’s not an activist court.”

Wainer Apter is a former law clerk to the late U.S. Supreme Court Justice Ruth Bader Ginsburg. She has also been the director of the state Division of Civil Rights and an attorney for the American Civil Liberties Union.

If she’s confirmed, Wainer Apter would would shift the makeup of the court from three Republicans, three Democrats, and one independent to four Democrats and three Republicans.

But her nomination isn‘t the only issue. This is the second of five Supreme Court nominations Murphy will make during his tenure, with two more coming in the next six months.

The governor already had one nominee, Fabiana Pierre-Louis, confirmed to the bench. In 2020, Pierre-Louis became the first Black woman to serve on the court in New Jersey history.

In addition to the Wainer Apter nomination, Justice Faustino Fernandez-Vina, a Republican, is set to reach the mandatory retirement age of 70 on Feb. 15.

Then, Justice Barry Albin, a Democrat, will hit retirement age on July 7.

Justice Lee Solomon, a Republican, will reach the age in August 2024.

Murphy would get to nominate successors for those three, as well. That means he could help determine the court’s makeup for years to come.

Governors and top lawmakers have traditionally sought to keep a partisan balance on the Supreme Court, though there is no law requiring it.

Murphy, an avowed progressive, could theoretically pick a Democrat for Fernandez-Vina’s seat — though he not yet indicated whom he may nominate.

It’s possible if he nominates a Republican to the spot, that could lead to an agreement to confirm Wainer Apter.

Murphy, who will be sworn in to a second term Jan. 18, said Monday he had “no update” on either Wainer Apter’s nomination or Fernandez-Vina’s retirement.

“We’ve enjoyed and we continue to enjoy very good partnership and deliberations with our legislative colleagues,” Murphy said during his latest COVID-19 briefing. “And I’m confident we’ll have a good result.”

In the meantime, Chief Justice Stuart Rabner announced Monday that state Superior Court Judge Jose Fuentes will serve on the Supreme Court temporarily until Wainer Apter or someone else is confirmed to replace LaVecchia.

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published this page in News and Politics 2022-01-04 03:44:48 -0800