Standoff over N.J. Supreme Court candidate ends as senator says she will no longer block nomination

Published: Sep. 02, 2022

New Jersey leaders may be on the verge of filling two of the three vacancies on the state’s highest court thanks to the end of a lengthy stalemate.

Rachel Wainer Apter, a civil rights attorney that Gov. Phil Murphy picked last year to serve on the state Supreme Court, is set to get a confirmation hearing now that a state lawmaker has given her approval after stalling the nomination for nearly a year and a half.

At the same time, Murphy is poised to nominate Douglas Fasciale, a state Superior Court appellate court judge who has been serving temporarily on the Supreme Court, to formally become a justice on the high court, according to a state senator.

Murphy nominated Wainer Apter, a fellow Democrat, in March 2021 to replace retiring Justice Jaynee Lavecchia, an independent. But her nomination has been held up by state Sen. Holly Schepisi, R-Bergen, under an unwritten rule known as senatorial courtesy, which allows state senators to block nominees who live in their home county.

Schepisi, however, said Friday she and Murphy met Thursday and “came to an agreement” to end the standoff.

She confirmed that Murphy will nominate Fasciale, a Republican from Union County, to fill another vacancy left after Justice Faustino Fernandez-Vina, a Republican, retired earlier this year.

The seven-member Supreme Court currently has three vacancies that have been filled by temporary judges amid the stalemate.

Murphy’s office declined comment Friday. But a source close to the administration confirmed the deal to NJ Advance Media. NJ Globe was the first to report the news.

The governor would still need to formally nominate Fasciale, 61.

It’s now up to the Democratic-controlled state Senate to confirm Wainer Apter and Fasciale. First, they must face confirmation hearings before the Senate’s judiciary committee.

State Senate President Nicholas Scutari, D-Union, said in a statement Friday it’s his “hope that we can move swiftly in considering these long-delayed nominations.”

“As always, we will begin vetting nominees as we receive them,” Scutari added.

At issue has been the makeup of the Supreme Court. New Jersey governors and top lawmakers have traditionally sought to keep a partisan balance on the court, though there is no law requiring it.

Wainer Apter would shift the makeup of the court to four Democrats and three Republicans.

The Englewood resident, 42, was a former law clerk to the late U.S. Supreme Court Justice Ruth Bader and has been an attorney for the American Civil Liberties Union and the state Attorney General’s Office, as well as director of the New Jersey Division on Civil Rights.

Schepisi, an attorney, said she had concerns about some of Wainer Apter’s positions, as well as the direction the court could take under Murphy, who will have been able to nominate five justices before his second term is through in 2025 and thus could shape the court’s makeup for years to come.

Wainer Apter even expressed interest in moving out of Bergen County to help move the process along.

Schepisi said Friday the bulk of conversations she’s had about the issue the last 18 months have been about “ensuring the historical partisan balance of the court.”

“You have a governor who for the first time in any sort of recent history who had five nominees with a court that is exceptionally powerful,” Schepisi said, adding she wanted to make sure “whoever was going to move forward had an appropriate balance of both political ideology, as well as judicial experience.”

She said “based upon the assurances to me,” she feels “comfortable” the court’s partisan balance will remain.

Murphy told NJ Advance Media in January he’s “respectful of the traditions of the court.”

“I think you’ll be very surprised if I don’t continue to be respectful of that,” the governor added.

Schepisi also said she is pleased about Fasciale’s pending nomination, noting he “absolutely has the experience and the background to bring that as a component to this current court makeup.”

The lawmaker did not commit to voting for Wainer Apter if the full Senate hears her nomination.

“We’ll have to see what occurs during the hearings,” Schepisi said.

The state Senate’s top Republican, Minority Leader Steven Oroho, tweeted Friday that “appreciates Schepisi’s efforts to ensure partisan balance is maintained“ on the Supreme Court.

“I continue to have serious concerns about Rachel Wainer Apter’s history of radically progressive activism and the damage she could do in decades on the court,” Oroho added.

The Supreme Court saw a third vacancy open up when Justice Barry Albin, a Democrat, retired in July. Justices must retired by age 70.

It’s unclear when Murphy may nominate a replacement for that seat.

Another, Justice Lee Solomon, a Republican, will reach the mandatory retirement age in August 2024. That means Murphy would be in line to nominate his replacement, too.

Jeralyn Lawrence, president of the New Jersey State Bar Association, said her group is “pleased to see movement in filling the historic level of vacancies on our Supreme Court” but called for quick confirmations and noted there are still widespread vacancies in the state’s lower courts.

“While there certainly is reason to celebrate, we also need to remember there remains one vacancy on our highest court that must be filled with haste as well as the vacancies in the severely depleted trial court which still are operating at levels that are unacceptable to be able to dispense justice for New Jerseyans,” Lawrence said. “While we applaud the Governor and Legislature for working together on filling two vacancies with what we expect to be incredible justices, let’s use this momentum to fill many more.”

Murphy has already had one nominee, Fabiana Pierre-Louis, confirmed to the Supreme Court. In 2020, Pierre-Louis became the first Black woman to serve on the court in New Jersey history.

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published this page in News and Politics 2022-09-03 02:48:57 -0700