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New Jersey Supreme Court Justice-designate Rachel Wainer Apter. (Photo: Edwin J. Torres/ NJ Governor’s Office.)

Wainer Apter and the ghost of Joel Jacobson

Nominees have strategically moved to avoid senatorial courtesy before

By David Wildstein, July 14 2022 11:29 am

If Rachel Wainer Apter moves out of Bergen County to break the senatorial courtesy stalemate that has kept her off the New Jersey Supreme Court for more than a year – POLITICO reported that possibility on Wednesday – she wouldn’t be the first to use that strategy.

In 1981, a few years after voters approved legalized gambling in Atlantic City, Gov. Brendan Byrne nominated Joel Jacobson to serve as a commissioner of the New Jersey Casino Control Commission.

Jacobson was among the most powerful labor leaders in the state – he ran the United Auto Workers union and was New Jersey CIO president before the merger with the AFL – and an early backer of Byrne’s bid for the 1973 Democratic gubernatorial nomination.  He had served as Byrne’s Commissioner of Energy, a cabinet post in those days.

But a Republican state senator from Essex County, James Wallwork (R-Short Hills), was a hard no on the nomination of Jacobson, a South Orange resident, and used senatorial courtesy to block him.

Jacobson was not to be encumbered by senatorial courtesy and figured out a work-around.

He changed his official residency from South Orange to his shore house on Long Beach Island.  State Sen. John Russo (D-Toms River) signed off and the Democratic-controlled State Senate confirmed him.

Wallwork had been the lone senator of either party to vote against Byrne’s nomination of Robert Wilentz as chief justice of the New Jersey Supreme Court in 1979.  Wallwork had questioned whether Wilentz really lived in Perth Amboy, or in a New York City apartment he owned.

Some Republican leaders strongly opposed Wilentz, whom they considered a judicial activist who had thrust the unpopular Mount Laurel decision on them and pushed GOP Gov. Thomas Kean — fresh off a 70% landslide re-election — to not reappoint him.  State Sen. Gerald Cardinale (R-Demarest) led the opposition to Wilentz.

Kean ultimately came down on the side of judicial independence, affirming his belief that justices who committed to no major blunders ought to be renominated even if they don’t share the ideology of the governor at that time.

Wilentz also faced a residency issue: he was living in Manhattan, saying he wanted to make it easier for his wife to receive cancer treatments.  He acknowledged that he spent enough time in New York that he had to pay income tax there.  Several senators felt New Jersey’s Chief Justice should live in New Jersey.

He claimed his official residence as Deal, rather than Perth Amboy, to stop a fierce critic, State Sen. Peter Garibaldi (R-Monroe), from using senatorial courtesy to block him.

The entire confirmation battle in a 23-17 Democratic Senate was touch-and-go.

Five  Democratic senators – Frank Pallone (D-Long Branch), Paul Contillo (D-Paramus), Catherine Costa (D-Willingboro), Raymond Zane (D-Woodbury) and Daniel Dalton (D-Glassboro)– were voting against Wilentz’s confirmation and unwilling to move.

That left it up to a Republican governor to sway three Republican senators to vote for a Democratic Chief Justice after Democratic Senate President John F. Russo (D-Toms River) couldn’t produce the votes for confirmation.

Kean lobbied hard, even threatening some Republican senators with a  primary if they didn’t vote for Wilentz.  He also horse-traded, which the onetime Assembly Speaker knew how to do as well as any governor in state history.

Bill Gormley (R-Margate) and Wayne Dumont (R-Phillipsburg), a former senate president, were the only two Republican senators on board for confirmation.

(In the Senate chamber for the vote was former Gov. Richard Hughes, who served as Chief Justice before Wilentz.  Dumont was the 1965 Republican candidate for governor and Hughes had slaughtered him.)

When the machines opened up for an up-or-down vote on Wilentz, the tally was stuck at 20-19.

Only Lee Laskin (R-Haddonfield), a Republican senator from Haddonfield, had not yet voted.  Laskin had served in the Assembly with Wilentz but was facing extreme pressure from Republicans to stick with the majority of the caucus.

To get Laskin, Kean made a deal with Wilentz: he would agree to move back to New Jersey as soon as his wife’s health improved; and Kean sign legislation to mandate judges to live in the state – a law Wilentz said he would obey.

Laskin’s voted yes, with the Senate voting 21-19 to give Wilentz tenure as Chief Justice.

Where could Wainer Apter go?

If Wainer Apter decides to leave Bergen – Politico’s Matt Friedman said today that he’s received conflicting reports on that – her options are limited.

Republicans have senatorial courtesy in fifteen counties.

A move to Camden County, viewed as the most unlikely of the other six, would mean Gov. Phil Murphy would need to get the blessings of South Jersey Democrats who are decidedly moving to the center for the upcoming midterm elections.

Getting four Essex Democratic senators to sign off on the same nominee is always complicated, and Wainer Apter would need to avoid municipalities in the 26th and 40th districts where Republican senators have courtesy.

Hudson has only Democratic senators, but Murphy would then need to come to an agreement with State Sen. Nicholas Sacco (D-North Bergen).  Wainer Apter could go to a town in Somerset or Hunterdon that is represented by State Sen. Andrew Zwicker (D-South Brunswick).

Mercer could be a safe haven for Wainer Apter, although governors have had difficulties in the past when they make incorrect assumptions about what State Sen. Shirley Turner (D-Lawrence) will or won’t do.

Correction: an earlier version of this story stated that Jacobson’s nomination came in 1977.  It was in 1981.  

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