Home>Governor>LaVecchia postpones retirement as Senate stalls on Murphy Supreme Court pick

New Jersey Supreme Court Jaynee LaVecchia, center, with Chief Justice Stuart Rabner, right, and Justice Anne Patterson. (Photo: Rutgers University Law School.)

LaVecchia postpones retirement as Senate stalls on Murphy Supreme Court pick

Chief Justice Rabner says LaVecchia has agreed to stay on for a few extra months

By David Wildstein, July 28 2021 1:35 pm

New Jersey Supreme Court Justice Jaynee LaVecchia has agreed to postpone her retirement date for a few months after the State Senate recessed until after the November general election without approving her replacement, Chief Justice Stuart Rabner said on Wednesday.

LaVecchia announced on March 8 that she would step down on August 30 and Gov. Phil Murphy nominated Rachel Wainer Apter to replace her one week later.

But Senate Judiciary Chairman Nicholas Scutari told the New Jersey Globe in June that Wainer Apter would not be confirmed before the top court begins its new session on September 1.

“Recent public statements have confirmed that confirmation hearings will not be held until after Election Day,” Rabner said in a statement. “By around that time, the Supreme Court will have heard oral argument in about forty percent of the cases for the 2021-22 term.”

Wainer Apter, the director of the state Division of Civil Rights and a former law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg, has not received sign off from one of her home county senators, Holly Schepisi (R-River Vale).  Under the unwritten rule of senatorial courtesy, the Judiciary Committee can’t consider the nomination without Schepisi’s consent.

“To best serve the public, the Court should have a full complement of Justices this fall to hear and decide cases and to address the heavy volume of petitions for certification, motions, disciplinary and character matters, and other issues that require timely resolution,” Rabner said.  “Under the circumstances, I recently asked Justice LaVecchia if she would consider delaying her retirement for a few months.”

By asking LaVecchia to change the effective date of her retirement, Rabner avoids the need to elevate a senior Appellate Division judge on a temporary basis.

Senatorial courtesy, an unwritten but immovable rule, allows members in the upper chamber to indefinitely block gubernatorial nominations from their home counties. They don’t have to give a reason. Schepisi’s say-so could prove a major hurdle for the Wainer Apter, as it’s unclear whether the Republican is willing to back a nominee GOP lawmakers and gubernatorial candidate Jack Ciattarelli have criticized as liberal.

Wainer Apter’s nomination does not appear to be automatic even if Schepisi signs off.

Murphy’s spokesperson said last month that the delay was unfortunate but added they believed Wainer Apter was qualified and would eventually be confirmed.

Democrats have told the New Jersey Globe that no decision has been made about moving Wainer Apter in the legislature’s lame duck session if Murphy is defeated by Republican Jack Ciattarelli in the yu

LaVecchia’s retirement was unexpected.  At age 66, she still had more than three years remaining before reaching the mandatory retirement age of 70.

A former assistant counsel to Gov. Thomas Kean, LaVecchia served as the state Commissioner of Banking and Insurance for seventeen months before Gov. Christine Todd Whitman nominated her to serve as an Associate Justice following the retirement of Marie Garibaldi.

“I am very grateful that she graciously agreed to do so and is willing to remain on the Court until no later than the end of this calendar year,” Rabner said.

Rabner said LaVecchia won’t stay beyond December 31.

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