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Gov. Phil Murphy in Montclair, NJ on May 5, 2022. (Photo: Kevin Sanders for the New Jersey Globe).

Murphy still has no N.J. Supreme Court news on first day of judicial session

Could lengthy delay impact future Murphy political aspirations?

By Joey Fox, September 01 2022 2:56 pm

It’s December 2023. President Joe Biden isn’t running for re-election, and New Jersey Gov. Phil Murphy is one of 26 Democrats running to succeed him. On a debate stage in South Carolina, moderator Steve Kornacki tees up the question Murphy’s been weathering for months.

“Governor Murphy, as you know, nominating members of the U.S. Supreme Court is one of the most important duties a president has,” Kornacki says. “Why should voters trust you with that responsibility, given that you’ve been unable to fill three vacant seats on the Supreme Court in your own state?”

It’s unlikely that the ongoing vacancy crisis on the New Jersey Supreme Court will last long enough to significantly hamper any potential future Murphy campaign. But it’s now been nearly 18 months since former Justice Jaynee LaVecchia first announced she would be stepping down, and Murphy still has no update on the timeline to replace her or two other justices who hit the mandatory retirement age earlier this year.

“No news to make on the Supreme Court, but I remain optimistic that we’ll get to a good place sooner than later,” the governor said today in Hillsborough, approximately repeating what he said in February, April, June, and July.

For comparison, Biden took less than a month to nominate Ketanji Brown Jackson to replace Justice Stephen Breyer on the U.S. Supreme Court – and anything longer than that would have likely been unacceptable to the voters in his Democratic base.

Today is the first day of the New Jersey Supreme Court’s judicial session following its summer recess, and it will technically be operating with a full complement of seven members. Chief Justice Stuart Rabner has elevated three judges of the Superior Court – Clarkson Fisher Jr., Jack Sabatino and Douglas Fasciale – to serve as interim members of the Supreme Court while Murphy and the State Senate negotiate confirming permanent justices.

But that’s a tenuous arrangement at best, since it means that appointed justices will make up nearly half of the court’s votes, and could swing the outcomes of highly contentious cases. (That already happened once earlier this year, when temporarily elevated Superior Court judge Jose Fuentes cast the deciding vote in the 3-2 decision to release Sundiata Acoli, who murdered a state trooper in 1973.)

The prolonged vacancy issue began in March 2021, when LaVecchia announced her retirement and Murphy chose former Ruth Bader Ginsberg law clerk and ACLU staff attorney Rachel Wainer Apter to replace her. As a resident of Bergen County, Wainer Apter has to get senatorial signoff from Bergen’s four state senators, something State Sen. Holly Schepisi (R-River Vale) has thus far refused to provide.

As Murphy and Schepisi continued their stalemate, two other seats on the high court became vacant: those formerly held by Justice Faustino Fernandez-Vina, who turned the mandatory retirement age of 70 in February of this year, and Justice Barry Albin, who reached that same milestone in July.

Without action on Wainer Apter’s nomination, Murphy has so far declined to even announce a nominee for either of the other two seats. It’s likely that any agreement ultimately reached by Murphy, Schepisi, and Senate President Nick Scutari (D-Linden) will involve all three seats at once – but after spending the summer trying to figure out how to fill the seats, there still isn’t a deal in place.

It’s not just the state Supreme Court that’s feeling the brunt of vacancies. The Superior Court system currently has an approximately 15% vacancy rate, a problem largely caused by the slow pace of nominations coming from the governor’s office; even if every current nominee was confirmed by the Senate tomorrow, there would still be a hefty number of vacancies.

Presidents, too, have the role of nominating judges to lower courts, something at which Biden has been remarkably proficient. As of last month, Biden had gotten 75 federal judges confirmed by the Senate, more than any president at this point in his tenure since John F. Kennedy.

Whether or not future Democratic primary voters would care about the minutiae of state-level court nominations is an open question. But Murphy has repeatedly cast himself as a progressive who can get things done, an image he’d be likely to promote in any future political campaign; having something so major left undone could stand in the way of that message.

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