Schepisi still won’t take firm stance on Wainer Apter

State Sen. Holly Schepisi (R-River Vale), who has used the unwritten rule of senatorial courtesy to block New Jersey Supreme Court nominee Rachel Wainer Apter for over a year, yesterday once again declined to say where exactly she stands on Wainer Apter’s nomination.

Wainer Apter was nominated by Gov. Phil Murphy more than a year ago, after Justice Jaynee LaVecchia announced her retirement in March 2021. But Schepisi said yesterday that Murphy should instead focus on nominating candidates to two other Supreme Court seats, one of which is vacant after Justice Faustino Fernandez-Vina reached the mandatory retirement age in February and another of which will soon be open after Justice Barry Albin hits that same milestone in July.

“It’s up to the governor’s office,” Schepisi said. “There are two seats right now that they could immediately put up, and you wouldn’t have the vacancy.”

The court is currently at six members, five of whom are Senate-confirmed and one of whom, Superior Court Judge Jose Fuentes, is a temporary member who has served as the tiebreaking vote on several high-profile cases. Once Albin retires, the court would be down to just four full members, a possibility that Chief Justice Stuart Rabner has urged the governor and legislature to avert.

Though Fernandez-Vina’s seat has sat vacant for three months, Murphy has yet to submit a nominee to the Senate. Asked last month about the growing vacancy problem on the court, Murphy simply said he didn’t have any news to make.

Even if Murphy did finally nominate someone to replace Fernandez-Vina, however, it still wouldn’t necessarily solve the impasse with Schepisi. 

As a resident of Bergen County, Schepisi can hold up any Bergen nominee for as long as she chooses, and there’s been little political pressure to get the center-right senator to give her blessing to the liberal Wainer Apter. In fact, Schepisi could face political consequences in a primary if she were to lend her support to a former ACLU staff attorney and clerk for Ruth Bader Ginsberg.

It may be that everyone involved is waiting until Albin’s retirement to hash out a deal. Two key factors, the Supreme Court’s partisan balance and the diversity of its membership, constrain any nomination, and both may be influencing the Murphy administration’s approach.

The court typically has at least three Democrats and three Republicans at any given time, and the three departed or soon-to-depart members are evenly split: Albin’s a Democrat, Fernandez-Vina’s a Republican, and LaVecchia’s an independent. Murphy is also likely to want to maintain Hispanic representation on the court, with Fernandez-Vina serving as the court’s lone Hispanic member since he was confirmed in 2013.

If Murphy were to choose a replacement for Fernandez-Vina now, the nomination would likely go to a Hispanic Republican. But with Albin retiring soon, the governor may see an opportunity to gain more leeway on whom he chooses for each seat, since he would have the option to nominate a Hispanic member of his own party for Albin’s seat; pushing three nominations at once, in other words, gives the governor the ability to balance the nominees against one another.