The clock on Gov. Phil Murphy’s nomination of Rachel Wainer Apter to the New Jersey Supreme Court is quickly running out and it’s not clear whether Justice Jaynee LaVecchia will extend her retirement for a second time.
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State Sen. Holly Schepisi (R-River Vale) has not signed off on Wainer Apter and there is no indication that she will before the current legislative session ends next month.
That means Murphy would have to renominate her – and the recently re-elected Schepisi will still have senatorial courtesy – an unwritten rule that halts Senate confirmation until home county senators approve gubernatorial nominations – in the next session.
But if Murphy determines that he can’t get Wainer Apter confirmed, he could nominate someone else.
Murphy nominated Wainer Apter on March 15, one week after LaVecchia unexpectedly announced that she would step down at the end of August, three years before she reached the mandatory retirement age of 70.
After it became clear that the Senate would not confirm Wainer Apter before the start of the new court session on September 1, LaVecchia said she would delay her retirement until the end of the year.
While LaVecchia is eligible to remain on the bench, it will be her call whether she returns after New Year’s Day.
Murphy gets two more Supreme Court picks in 2022
Murphy will name at least two more Supreme Court Justices in 2022: Faustino Fernandez-Vina turns 70 on February 15 and Barry Albin on July 7. That will mean a majority of the top court will have been named by Murphy, if he gets his nominees approved by the Senate.
Fernandez-Vina is the lone Hispanic on the seven-member court, which includes one Black woman – Murphy’s nominee, Fabiana Pierre-Louis – three white men and two white women, LaVecchia and Anne Patterson.
It is unlikely that Murphy would leave the court without a Hispanic justice.
Albin might be Murphy’s last chance to nominate a Democrat to the Supreme Court. Fernandez-Vina and Lee Solomon, who must retire by August 17, 2024, are Republicans. Murphy is expected to retain GOP representation on the top court, which by tradition gives each party at least three seats. Patterson is a Republican.
Wainer Apter, a former American Civil Liberties Union staff attorney and law clerk to U.S. Supreme Court Justice, currently serves as the director of the Division