Gov. Phil Murphy will nominate Rachel Wainer Apter, a former law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg, to serve as an Associate Justice of the New Jersey Supreme Court, the New Jersey Globe has learned.
Murphy will formally announce Wainer Apter, the 40-year-old director of the New Jersey Division of Civil Rights and a former American Civil Liberties Union staff attorney, on Monday morning to replace Justice Jaynee LaVecchia. LaVecchia announced last week that she would step down on August 31.
The election year nomination of Wainer Apter allows Murphy to name a second young woman to the Supreme Court in less than a year, a move that begins to establish what could be a legacy that lasts decades beyond his time as governor of New Jersey.
Wainer Apter is seven weeks older than Justice Fabiana Pierre-Louis, who was Murphy’s pick last year when Justice Walter F. Timpone reached the mandatory retirement age of 70. If confirmed, the two justices could potentially serve on the top court until 2050 – or longer, if New Jersey decides to extend the retirement age for judges.
An Englewood resident and mother of three, Wainer Apter was among the candidates considered for Timpone’s seat, so the vetting process was mostly completed by the time LaVecchia informed the governor’s office of her intention to leave the court at the end of the current session.
The Englewood resident and mother of three served as a senior staff attorney for the American Civil Liberties Union before joining Murphy’s transition team in 2017. She joined the state attorney general’s office in 2018.
At the ACLU, Wainer Apter worked on a U.S. Supreme Court case where a Colorado bakery had refused to make a wedding cake for a gay couple.
It’s not immediately clear if Wainer Apter will remain as director of the state Division of Civil Rights while seeking Senate confirmation, although there is no legal obstacle to her doing so.
Wainer Apter grew up in Rockaway and graduated from Morris Hills Regional High School, where she scored a perfect 1600 on her SATs.
A 2004 graduate of Harvard Law School, Wainer Apter clerked for U.S. District Court Judge Jed Rakoff in the Southern District of New York, and for Chief Judge Robert Katzman of the 2nd Circuit U.S. Court of Appeals.
Wainer Apter was a law clerk for Ginsburg from 2011 to 2012 and was among the late justice’s former clerks who stood as an honorary guard beside her coffin as she lay in repose at the U.S. Supreeme Court last year.
She will be the second of Ginsburg’s clerks during the 2011-12 court term to become a judge.
Last summer, President Donald Trump nominated Benjamin J. Beaton to serve as a U.S. District Court Judge for the Western District of Kentucky.
Murphy will make his announcement on what would have been Justice Ginsburg’s 88th birthday.
Before joining the ACLU, Wainer Apter was an associate at a New York law firm, Orrick, Herrington and Sutcliffe, where she was part of their Supreme Court and Appellate practices.
As counsel to the attorney general, Wainer Apter was part of a legal team that along with eight other states challenged the Trump administration’s bid to end the Deferred Action for Childhood Arrivals (DACA) program.
While serving in the Murphy administration, Wainer Apter created a Civil Rights Incident Response Team and a Community Relations United to help community responses, according to her Department of Law and Public Safety biography. She also developed a director-initiated investigations into incidents of systemic discrimination.
Barring additional unanticipated retirements, the winner of the 2021 gubernatorial election will have three Supreme Court picks between 2022 and 2024.
Two justices will age out next year: Faustino Fernandez-Vina and Barry Albin.
Fernandez-Vina, a Republican, was renominated to a tenured term by Murphy in 2020. He is due to retire on February 15, 2022. He was named to the court by Gov. Chris Christie in 2013.
Albin, arguably the most liberal member of the current court, is due to retire on July 7, 2022 after nearly 20 years as an Associate Justice.
Murphy is expected to renominate Justice Lee Solomon to a tenured seat on the top court before his current seven-year term expires on June 19. A former Republican assemblyman and Camden County freeholder named to the Supreme Court by Christie in 2014, would then serve until her turns 70 on August 17, 2024.
If Murphy is re-elected, he will be positioned to name five of the seven justices to the New Jersey Supreme Court by the end of his second term.
But if Republican Jack Ciattarelli unseats Murphy, he would be able to secure a Republican majority on the top court by adding his three nominees – as long as he could gain confirmation by the State Senate.
Another Republican Justice, Anne Patterson, was renominated to a tenured post by Murphy in 2018 and reaches her retirement age in 2029.
The winner of the 2029 gubernatorial election will name the next Chief Justice, unless Stuart Rabner chooses to retire before he reaches his 70th birthday in 2030.
LaVecchia’s decision to retire three years early is timed to coincide with the start of the New Jersey Supreme Court’s 2021-22 term.
Murphy now has five months to get the Senate to confirm his nomination of Wainer if she is to be in her seat at the start of the next term.
If the Senate doesn’t confirm her before the legislature reorganizes in January, the winner of the upcoming gubernatorial election will fill the seat.
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