Home>Governor>With three vacancies on state Supreme Court, Murphy still has ‘no news to make’

Gov. Phil Murphy speaks with the media in Camden on July 27, 2022. (Photo: Joey Fox for the New Jersey Globe).

With three vacancies on state Supreme Court, Murphy still has ‘no news to make’

Albin reached retirement age on July 7

By Joey Fox, July 27 2022 1:23 pm

Former New Jersey Supreme Court Justice Barry Albin hit the mandatory retirement age of 70 earlier this month, meaning that New Jersey’s seven-member high court now has three vacant seats. But Gov. Phil Murphy, who has long been engaged in a behind-the-scenes battle with members of the state legislature over the court, said today that he still has nothing specific to report.

“It’s obviously a high priority for us,” Murphy said during a press gaggle in Camden. “I’ve got no news to make today, but we’re working constructively … with the State Senate and, God willing, we’ll get those filled sooner than later.”

Well back in March 2021, Justice Jaynee LaVecchia announced she would retire early, and Murphy quickly chose Rachel Wainer Apter, the director of the New Jersey Division on Civil Rights, to take her place. But as a resident of Bergen County, the liberal Wainer Apter had to get senatorial courtesy from State Sen. Holly Schepisi (R-River Vale) – which Schepisi still has not granted 16 months later.

Though LaVecchia agreed to stay on the court a little while longer to give the governor time to sort out her replacement, she eventually left the court in December 2021. She was soon followed out the door by Justice Faustino “Fuzzy” Fernandez-Vina, who turned 70 in February.

Chief Justice Stuart Rabner has the ability to elevate Superior Court justices when there’s a vacancy on the top court, and he did so for LaVecchia’s seat, allowing Superior Court Judge Jose Fuentes to serve as a Superior Court justice on a temporary basis. Rabner has so far chosen not to elevate replacements for Fernandez-Vina or Albin, however, and has implored the state’s elected officials to fill the vacancies themselves.

This is the first time since New Jersey’s modern judicial system was adopted in 1947 that three of the court’s seven seats have been vacant at the same time. While the effects will be limited for now, given that the court doesn’t hear cases over the summer, it would be remarkable if the court still has only four full-time members when it reconvenes in September.

“Ask any student of the constitutional convention of 1947, and they will tell you that is not what the framers of the modern constitution had in mind,” Rabner said in May. “Nowhere in the debates over the judicial branch did they contemplate a vacancy level of more than 40% for the state’s highest court.”

As the New Jersey Globe has reported, a deal may be coming together wherein Senate President Nick Scutari (D-Linden) convinces Schepisi to sign off on Wainer Apter, and in exchange gets to pick the Republican nominee for Fernandez-Vina’s seat (governors have long maintained the partisan balance of the court, with at least three members from either party). A Democratic nominee, likely to be Hispanic, would then be chosen for Albin’s seat.

Scutari told senators in June that they should expect to come back in late July or early August to confirm nominees, and Senate Judiciary Chairman Brian Stack (D-Union City) has affirmed that he intends to hold Judiciary Committee meetings over the summer recess to address severe backlogs at the trial court level, where 62 vacancies — the number will increase to 63 in five days — exist.

But it’s July 27, and there’s still no outward sign of a deal. If Murphy has any news beyond what’s already been reported, he’s not making it today.

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