Home>Governor>Schepisi releases nomination of Wainer Apter to N.J. Supreme Court; Murphy will nominate Fasciale

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.)

Schepisi releases nomination of Wainer Apter to N.J. Supreme Court; Murphy will nominate Fasciale

Agreement between governor and Bergen GOP senator maintains partisan balance of state’s top court

By David Wildstein, September 02 2022 12:30 pm

Rachel Wainer Apter’s nomination as an associate justice of the New Jersey Supreme Court will move forward, with State Sen. Holly Schepisi (R-River Edge) agreeing to sign off on the nomination, the New Jersey Globe has confirmed.

Murphy will also nominate a Republican, Superior Court Judge Douglas M. Fasciale, to fill the seat of  Justice Faustino Fernandez-Vina, who reached the mandatory retirement age of 70.

“We do have an agreement.  I will be releasing courtesy to allow hearings on Rachel Wainer Apter,” Schepisi told the New Jersey Globe.

Wainer Apter and Fasciale will move in tandem.

The agreement between Murphy and Schepisi, which assures the continuation of a tradition of partisan balance on the New Jersey Supreme Court, breaks a stalemate of more than 17 months.  Murphy originally nominated Wainer Apter, the director of the state Division of Civil Rights, on March 15, 2021, but the Senate’s unwritten senatorial courtesy rule prevented a confirmation hearing without the agreement of Schepisi, one of her home county senators.

Schepisi met directly with Murphy on Thursday to reach an accord on Wainer Apter, and the New Jersey Globe has confirmed that the governor has committed to retaining the tradition of a partisan balance on the Supreme Court.

Signoff doesn’t necessarily mean Schepisi will vote to confirm Wainer Apter when she reaches the full Senate, but it will help her avoid moving out of Bergen County to sidestep senatorial courtesy.

Senate confirmation for Wainer Apter and Fasciale will now be in the hands of Senate President Nicholas Scutari and Judiciary Committee Chairman Brian P. Stack, who will determine a timetable for a confirmation hearing and vote of the full Senate.

Scutari had strongly advocated for Fasciale.

Stack told the New Jersey Globe earlier this week that the next scheduled meeting of his committee is on October 13, although he and Scutari can adjust that date.

The third vacant seat on the state’s top court, left empty when Justice Barry Albin retired in July, will remain vacant for now.   The contender for the seat is a Democrat John E. Keefe, Jr., a partner at Wilentz, Goldman & Spitzer and a former president of the New Jersey Bar Association.

Several sources have confirmed that another associate justice, Lee A. Solomon, is considering an early retirement.  The 68-year-old former Republican assemblyman still has two more years before his mandatory retirement, but his departure could facilitate another agreement between Murphy and Senate Republicans to confirm a pair of justices at the same time.

“Two additional judges will move upon Solomon’s retirement,” Schepisi said.  “I will be working very closely with the governor’s office as to how those nominees will be, and I will have a seat at the table.”

Still, the decision on the nominations will belong to Murphy and not Schepisi or any other member of the Senate. The New Jersey Globe confirmed that Schepisi will play a role in those decisions.

If Solomon does not retire early, it’s possible that Murphy will revisit the decision to hold off on a nomination for Albin’s seat rather than maintain a Supreme Court vacancy for another two years.  But Murphy will remain committed to nominating a Republican to replace Solomon.

The departure of Fernandez-Vina leaves the state’s highest court without any Hispanic representation.

Murphy will need to decide if he wants to make history by naming the state’s first Latina Supreme Court Justice.  If he does that, he’ll also add the talking point of a top court that has a majority of women – something that happened once before, under Republican Gov. Chris Christie.

Two potential candidates for the Solomon seat are two Republican women who currently serve on the bench: Union County Assignment Judge Lisa Miralles-Walsh, 48, and Maritza Berdote-Byrne, 55, who is currently on temporary assignment to the state appellate court.  Berdote-Byrne had interviewed with members of the governor’s staff last year.

The list of candidates for the Albin and Solomon seats could expand as the process moves forward.

Wainer Apter, 42, is a former law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg and worked as a staff attorney at the American Civil Liberties Union.  She can potentially spend the next 28 years on the New Jersey Supreme Court.

The 61-year-old Fasciale has spent 18 years as a Superior Court Judge.  He served as presiding judge of the both the criminal and civil divisions in Union County before Rabner elevated him to the appellate division in 2010.  He’s been a presiding judge of an appellate panel since 2019.

Chief Justice Stuart Rabner has temporarily elevated Fasciale to the Supreme Court, where he has served since yesterday.

Murphy will need to notify the Senate of his intent to nominate Fasciale and that can’t happen until the Senate holds a quorum call; the next one is scheduled for September 29, although Scutari can alter the schedule.  The Judiciary Committee and the full Senate cannot vote on Fasciale until at least seven days after the notice of intent is filed.

New Jersey State Bar Association Judicial and Prosecutorial Appointments Committee (JPAC) must first designate Fasciale as qualified in accordance with the Hughes Compact, an agreement originally negotiated between Gov. Richard J. Hughes and the Bar Association in 1969 that requires governors to submit the names of judicial and prosecutorial nominees to the Bar Association for evaluation.

That could take up to 20 days, but Fasciale’s tenure as a judge – along with some nudging from Murphy and Scutari – could speed that along.

Correction: an earlier version of this story incorrectly stated that the New Jersey Supreme Court had a majority of women judges under Gov. Christine Todd Whitman.  It was under Gov. Chris Christie. 

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