Depleted N.J. Supreme Court poised to finally add 2 justices after political logjam cleared

Rachel Wainer Apter

Rachel Wainer Apter, Gov. Phil Murphy's nominee to the New Jersey Supreme Court, will finally appear before the state Senate Judiciary Committee on Thursday, Oct. 13, after a 17-month political logjam.

New Jersey’s top court is poised to get two new justices after a long wait prompted by politics.

State Supreme Court nominees Douglas Fasciale of Westfield and Rachel Wainer Apter of Englewood are scheduled to have confirmation hearings before the state Senate Judiciary Committee on Thursday, and both are expected to be confirmed by the full Senate next week.

Wainer Apter’s appearance before the Senate panel comes nearly a year and a half after she was first nominated by Gov. Phil Murphy. Fasciale has served as an interim Justice since Sept. 1 to help fill a depleted court that has an unprecedented three vacancies due to the recent retirements of Jaynee LaVecchia, Faustino Fernandez-Vina, and most recently, Barry Albin.

Senate President Nicholas Scutari, D-Union, told NJ Advance Media he fully expects the nominees to get approved Thursday by the 11-member Senate panel and confirmed by his 40-member chamber on Monday.

“I see no further problems in seeing this happening,” Scutari said. “Keeping partisan balance on the high court has been very important. They are a great combination. Although people think of New Jersey as a Democratic state, we have a perfect mix with Doug Fasciale and an impressive young lady who is very smart who I am sure will do a very good job as well.”


      

After the long wait, Murphy is elated to see both nominations advance, according to spokeswoman Natalie Hamilton.

“He looks forward to a swift confirmation by the Senate so these two outstanding nominees can take their seats on New Jersey’s highest court,” Hamilton said.

Politics has been primarily behind the stalling of Wainer Apter’s nomination under a tradition called senatorial courtesy in which a senator can block a home county nomination without having to give a particular reason.

In this case, state Sen. Holly Schepisi, R-Bergen, who represents the district that Wainer Apter, 42, resides in, stated publicly for months that she felt that some of the nominee’s policy positions were too liberal.

The logjam on Wainer Apter, a Democrat, thawed last month when Schepisi finally agreed to back her nomination after weeks of discussions with the governor’s office.

A protégé of U.S. Supreme Court Justice Ruth Bader Ginsberg, Wainer Apter is up for the seat vacated by LaVecchia, who was described as an independent on the court during her 20-year tenure.

Wainer Apter accepted Murphy’s nomination on the stage named after her mentor, the Ruth Bader Ginsburg Hall on the Newark campus of Rutgers University, in March 2021.

“Serving on the New Jersey Supreme Court is the most important trust that can be placed in a lawyer in this state,” Wainer Apter said then. “The cases that the Supreme Court hears concern issues of fundamental importance to the state and to all of us as individuals, including how our society will live up to the promise of equal justice under the law.

“The New Jersey Supreme Court also has a distinguished tradition of independence, fairness and integrity,” said Wainer Apter. “I would be honored to be able to continue that tradition.”

The Harvard Law School educated Wainer Apter credited her Jewish parents for instilling a strong work ethic and said her childhood was heavily influenced by the Holocaust, and that is why she chose to become a lawyer.

Wainer Apter said her great grandparents fled anti-Semitic persecution in Russia and Eastern Europe and immigrated to the United States to worship freely.

In her nomination acceptance speech, the mother of three young children said she has spent most of her career addressing systematic racism and inequality, first at the American Civil Liberties Union’s national office as a staff attorney and later with the state Attorney General’s Office where she worked under former state AG Gurbir Grewal.

“Rachel is an intellectual powerhouse and one of the country’s most thoughtful and passionate civil rights litigators,” Grewal said on the day Murphy announced her nomination.

If confirmed, Fasciale, 61, a senior Appellate Division jurist who authored more than 50 opinions and served 18 years as a state Superior Court Judge in Union County, would replace fellow Republican Fernandez-Vina on the court.

Murphy announced his nomination on Sept.14 at the Trenton War Memorial with Fasciale’s wife, an attorney, and two aspiring lawyer adult sons looking on.

Gov. Murphy announces latest state Supreme Court nomination

Douglas R. Fasciale thanks Gov. Phil Murphy at the Trenton War Memorial on Wednesday, Sept. 14, 2022 as the governor looks on. Murphy announced Fasciale, a Republican, as his pick to succeed Faustino Fernandez-Vina on the New Jersey Supreme Court.Dave Hernandez | For NJ Advance

Attorney Chris Placitella of Red Bank first met Fasciale when he was a young lawyer and a law clerk to state Superior Court Judge John E. Keefe in Middlesex County.

“Justice Fasciale has devoted his entire career to serving the people of New Jersey,” Placitella told NJ Advance Media. “Justice Fasciale is highly intelligent, knowledgeable, and works very hard to arrive at the fair and just result.

“As a former trial lawyer and trial Judge, Justice Fasciale has an in depth understanding of the law and a great appreciation for what it takes to insure that every citizen has access to justice that the 7th Amendment to our Constitution guarantees,” said Placitella.

Former state Supreme Court Justice Peter Verniero served with Fasciale on the Supreme Court’s Civil Practice Committee and is familiar with many of Judge Fasciale’s judicial opinions.

“He was an insightful, contributing member of the committee,” recalled Verniero, who was appointed by former Republican Gov. Christie Whitman, and is now with Newark-based Sills Cummis & Gross. “In addition to being fluent in the law, he has an excellent judicial demeanor.

“His opinions are uniformly well written, thoughtful and tethered to the law and facts,” added Verniero. “I predict he will be a valued addition to the Supreme Court.”

The nominations of both Wainer Apter and Fasciale were reviewed by the New Jersey State Bar Association’s Judicial and Prosecutorial Appointments Committee and each has undergone thorough background checks by the State Police.

Murphy has yet to nominate a replacement for Albin on the court.

Other judicial hopefuls will also be considered by the Senate panel on Thursday. Like the state Supreme Court, Superior Court is also facing a historic number of vacancies — currently 64 seats are empty according to the Judiciary — due to a perfect storm of retirements, too few legislative hearings to vet nominees during the pandemic, and politics via senatorial courtesy.

Seven will be vetted for renominations by the panel to serve on Superior Court: 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.

Scutari said he expects the slate of Superior Court nominees to also be confirmed on Monday by the full Senate.

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Suzette Parmley may be reached at sparmley@njadvancemedia.com or follow her on Twitter: @SuzParmley

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