New Jersey Division on Civil Rights director Rachel Wainer Apter and Superior Court Judge Douglas Faciale were confirmed today by the State Senate for seven-year terms on the New Jersey Supreme Court, at last addressing a vacancy crisis on the state’s top court that has been building since spring of 2021.
Fasciale, a moderate Republican, was confirmed unanimously. Wainer Apter, on the other hand, faced scrutiny from Republicans concerned about her past career in liberal advocacy circles, and was approved on a mostly party-line 23-14 vote, with State Sen. Bob Singer (R-Lakewood) breaking with his caucus to support her.
Both will be sworn in imminently, in a private ceremony held on Friday. Wainer Apter, having been confirmed first today, will also be sworn in first – an important distinction on the seniority-based court, since senior justices get more leeway in deciding which opinions to write.
Once they take their seats, there will be one seat on the seven-member court still left vacant.
Wainer Apter was nominated to the court in March 2021 to replace Justice Jaynee LaVecchia, but her nomination was blocked for well over a year by State Sen. Holly Schepisi (R-River Vale) via senatorial courtesy. While Wainer Apter was stuck in limbo, two more seats on the court came open when two other justices, former Justices Barry Albin and Faustino Fernandez-Vina, reached the mandatory retirement age of 70.
The long-standing stalemate over all three seats led to the court beginning its session this year with only four permanent justices; the three other seats were filled by temporarily elevated Superior Court judges, among them Fasciale.
Last month, Schepisi finally reached a deal with Gov. Phil Murphy and Senate President Nick Scutari (D-Linden) to resolve the crisis, and Wainer Apter’s nomination was released as Murphy named Fasciale to fill Fernandez-Vina’s seat. Albin’s seat still has no nominee named.
Fasciale and Wainer Apter were approved by the Senate Judiciary Committee last Thursday. Today, just like in that committee hearing, Fasciale was complimented by senators on both sides of the aisle while Republicans took strong exception to Wainer Apter.
“Her legal footprint in New Jersey is so tiny that no impression has been made yet, at least not in a courtroom,” State Sen. Kristin Corrado (R-Totowa) said today of Wainer Apter. “There is no record to demonstrate that she has the ability to be impartial or neutral from the bench.”
Interestingly, State Sen. Jon Bramnick (R-Westfield) was also a no on Wainer Apter, despite voting for her in committee last week.
“There’s no evidence before us of any moderation,” Bramnick said in explaining his no vote. “I believe she’s intellectually qualified, but I think this should raise serious concerns, not only to Republicans but to Democrats. I believe she may be out of step with even the middle of the Democratic Party.”
Though they all voted for her, no Democrats stood on the floor to speak in support of Wainer Apter. Both Scutari and Murphy, however, released statements praising her shortly after her confirmation.
“Rachel Wainer Apter has an outstanding educational background and is a highly accomplished civil rights lawyer who has dedicated her professional life to the fight for equal treatment under the law,” Scutari said. “She will serve in the finest legal traditions of our state’s highest court, where she will use her talents effectively and honorably.”