Home>Governor>Despite national rulings, N.J. Supreme Court won’t have vacancies filled before recess

Gov. Phil Murphy announces his intention to nominate Rachel Wainer Apter to the New Jersey Supreme Court at the Ruth Bader Ginsburg Hall, Rutgers University-Newark on March 15, 2021. (Photo: Edwin J. Torres/ NJ Governor’s Office.)

Despite national rulings, N.J. Supreme Court won’t have vacancies filled before recess

Murphy says he’s confident in positive outcome ‘sooner than later’

By Joey Fox, June 24 2022 5:05 pm

With the U.S. Supreme Court delivering two key victories for conservatives in recent days – striking down the justifiable need requirement for concealed carry laws and rescinding the constitutional right to abortion – the New Jersey Judiciary may soon be faced with new legal challenges to the state’s laws, especially to gun restrictions and regulations.

But the New Jersey Supreme Court remains hobbled by two vacancies, and there’s no real chance progress will be made before Justice Barry Albin hits the mandatory retirement age in two weeks and brings the number of vacancies up to three, something that’s never happened since the modern New Jersey judiciary system was established in 1947.

There’s currently no deal in place to move Rachel Wainer Apter, who was nominated by Gov. Phil Murphy in March 2021 to succeed retiring Justice Jaynee LaVecchia, past the blockade created by State Sen. Holly Schepisi (R-River Vale)’s senatorial courtesy. And Murphy has not even named a nominee to the vacant seat formerly held by Justice Faustino Fernandez-Vina, nor has he publicly indicated whom he’ll nominate to Albin’s seat once it becomes vacant on July 7.

The court has had to operate with a reduced cohort of justices in recent months, and the tiebreaking vote in one major ruling – freeing Sundiata Acoli, in prison for killing a state trooper in 1973 – was cast by Superior Court Judge Jose Fuentes, who has been temporarily elevated to the Supreme Court.

At a press conference today on the U.S. Supreme Court’s concealed carry decision, Murphy said that the judiciary’s vacancy problem is a focus of his administration, though he did not give any clear timeline for when a solution might arrive.

“We clearly share [Chief Justice Stuart Rabner]’s concern, and legislative leadership and the Senate in particular shares the concern, that we need to fill these vacancies,” the governor said. “I’m confident we’ll have a positive resolution sooner than later on the [New Jersey] Supreme Court.”

The New Jersey Monitor reported earlier this week that Senate Judiciary Committee Chair Brian Stack (D-Union City) intends to reconvene his committee during the summer recess to address judicial vacancies, and that the full Senate will meet to confirm any nominees approved by the committee. 

There is hope within the Murphy administration that the court’s vacancies will be filled by September 1, when the new court session begins. And since challenges to the state’s gun laws in particular would be more likely to go through federal court than state court, the level of urgency may not be as high as it appears.

But as Rabner said in his State of the Judiciary address last month, the Supreme Court is not designed to have such a high rate of vacancies, and the governor and legislature should act as soon as possible.

“The New Jersey Supreme Court regularly grapples with some of the most challenging and significant issues that our state faces,” he said. “I urge the legislative and executive branches to come together to resolve this problem before it gets even more challenging.”

This story was updated on June 25 at 1:56 p.m. with a correction: Chief Justice Rabner delivered the State of the Judiciary address, not Justice Albin. 

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