When now-New Jersey Supreme Court Justices Rachel Wainer Apter and Douglas Fasciale were confirmed by the New Jersey Senate last fall, it was an important day for the state’s highest court, which finally had a near-full complement of permanent members after a long vacancy crisis.
But three months after Wainer Apter and Fasciale were confirmed, one seat on the seven-member court remains vacant: that of former Justice Barry Albin, who left the court last summer after reaching the mandatory retirement age of 70. Asked today when the process might begin to fill Albin’s seat, Gov. Phil Murphy had no comment.
“No news to make,” Murphy said at a press gaggle following an unrelated event.
When might there be news to make? “No news to make on that either.”
Wainer Apter was first nominated to the court way back in March 2021, but her nomination was held up by State Sen. Holly Schepisi (R-River Vale), whose senatorial courtesy was necessary for Wainer Apter to proceed. That stalemate, which ultimately lasted for 19 months, caused a further logjam when two more justices hit age 70: former Justice Faustino Fernandez-Vina in February 2022, and Albin in July 2022.
Eventually, a deal was reached for Wainer Apter, a Democrat, and Fasciale, a Republican, to move through the Senate in tandem. Though Republicans objected to Wainer Apter’s nomination and voted against her on the Senate floor, the bipartisan nature of the dual nomination made the confirmation process easier.
But the deal did not include any timeline for filling the seat once held by Albin, a Democrat who is expected to be replaced by a fellow Democrat. (Tradition dictates that the Supreme Court include at least three members of each party at any given time; its six permanent members are currently split evenly between Democrats and Republicans.)
In October, Senate Judiciary Chairman Brian Stack (D-Union City) said he believed the process to fill the seat would begin “in the next few months,” but there hasn’t been much movement since then to bolster that prediction. Stack and other senators have also said they’d like to see a Hispanic nominee for the court, which does not have any Hispanic members following Fernandez-Vina’s departure.
There’s some speculation that Justice Lee Solomon, a Republican, could retire early, allowing Murphy to move another bipartisan pair of nominees through the Senate. Solomon won’t reach the mandatory retirement age until August 2024, however, so if he doesn’t voluntarily retire before then, Albin’s seat could remain vacant for a long time.
In the meantime, the seat has been temporarily filled by Superior Court Judge Jack Sabatino, allowing the court to function relatively normally – though it means that contentious cases may depend on the vote of someone who has never been confirmed as a Supreme Court Justice.