The New Jersey Supreme Court will operate with one fewer member than usual for the foreseeable future as uncertainty remains over a pair of vacancies on the state’s highest judicial body.
Chief Justice Stuart Rabner announced Wednesday he won’t appoint a temporary replacement after Associate Justice Faustino Fernandez-Vina hit the mandatory retirement age of 70 this week — the court’s second vacancy in less than a year.
That means the normally seven-member court will have only six members until Gov. Phil Murphy nominates a replacement who is then confirmed by the state Senate.
There is already one temporary member on the Supreme Court after Associate Justice Jaynee LaVecchia retired in December.
Murphy has nominated civil rights attorney Rachel Wainer Apter, a fellow Democrat, to succeed LaVecchia, an independent. But the Senate has yet to confirm Wainer Apter nearly a year after the governor announced her nomination.
Rabner named state Superior Court Judge Jose Fuentes as a temporary replacement for that spot.
But in a statement Wednesday, the chief justice noted that since New Jersey adopted a new state Constitution in 1947, governors have followed a tradition of having no more than four members of the court affiliated with a single political party.
Rabner must choose a Superior Court Judge to temporarily replace Fernandez-Vina, a Republican. The next judge in line, however, is a Democrat, and that would shift the idealogical balance of the court.
“In keeping with that valued tradition, I am not assigning an additional member of the Appellate Division to fill the vacancy created by Justice Fernandez-Vina’s mandatory retirement,” Rabner said.
Murphy said Wednesday he has “no news to report” on nominating someone to replace Fernandez-Vina. And though governors usually announce nominees for the court well before current justices retire, Murphy said there was “no reason one way or the other” he’s doing it differently this time.
“We want to make sure we get this right,” the governor said during his latest coronavirus briefing in Trenton.
This comes as New Jersey’s judiciary is plagued by the largest number of vacancies ever.
The New Jersey State Bar Association on Wednesday urged Murphy to work quickly with lawmakers to return the Supreme Court to seven members.
“The Supreme Court is the pinnacle of our independent, third branch of government and all efforts should be taken to ensure it can return to full strength as soon as possible,” said the association, the state’s largest organization of judges, lawyers, and legal professionals.
“In addition, with historic numbers of vacancies throughout the court system, many of which have been pending for several years, there are too few judges serving the bench,” the bar association statement added. “Coupled with the impact of the pandemic, the vacancies have resulted in staggering backlogs and too many people waiting for justice.”
A senior member of Murphy’s administration told NJ Advance Media on Wednesday that the “focus” of the governor’s office “right now” is getting Wainer Apter confirmed by the Senate.
The holdup there has been the approval of state Sen. Holly Schepisi, R-Bergen, who has not agreed yet to sign off on Murphy’s nomination.
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.
Schepisi has said she has concerns about “some of the positions” Wainer Apter has advocated for in the past, as well as the direction the court may take under Murphy, who will get to nominate five justices before his second term is through in 2025. The Republican senator said she wants to “ensure it’s a balanced judiciary” and “not an activist court.”
New Jersey governors and top lawmakers have traditionally sought to keep a partisan balance on the court, with one party having no more than four seats — though there is no law requiring it.
If she’s confirmed, Wainer Apter would would shift the makeup of the court to four Democrats and three Republicans.
It’s possible if Murphy promises to nominate a Republican to replace Fernandez-Vina, that could lead to a deal to confirm Wainer Apter.
Murphy told NJ Advance Media last month he’s “respectful of the traditions of the court,” which suggests he will keep the partisan balance.
“I think you’ll be very surprised if I don’t continue to be respectful of that,” the governor added.
In addition to the two current vacancies on the Supreme Court, Justice Barry Albin, a Democrat, will hit retirement age on July 7 and Justice Lee Solomon, a Republican, will reach the age in August 2024.
Murphy would get to nominate successors for those two, as well. That means he could help determine the court’s makeup for years to come.
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Brent Johnson may be reached at bjohnson@njadvancemedia.com. Follow him on Twitter at @johnsb01.
Suzette Parmley may be reached at sparmley@njadvancemedia.com. Follow her on Twitter at @SuzParmley.