The winner of the 2021 race for governor will nominate a majority of justices to the New Jersey Supreme Court between 2022 and 2024, creating a Ruth Bader Ginsburg-like quandary for the senior member of the court.
Associate Justice Barry Albin, arguably the most liberal member of the state’s top court, reaches the mandatory retirement age of 70 in July 2022. Albin has not signaled any intention to retire this year, a move that would allow Democrat Phil Murphy to nominate his replacement.
Reached by the New Jersey Globe, Albin politely declined comment.
If Albin chooses to remain on the Supreme Court for the first seven months of next year, he risks his replacement being selected by a Republican governor if Jack Ciattarelli defeats Murphy in the November general election.
Democrats and Republicans both acknowledge the uncertainties of New Jersey gubernatorial elections, especially during the ongoing pandemic.
In over a dozen interviews conducted with Democratic insiders and attorney, none viewed Albin as irreplaceable and all saw similarities to Ginsburg’s seat falling into the hands of Republicans.
Still, none think that Albin is likely to depart early.
A dialogue about the future of the state Supreme Court is likely to occur during the upcoming governor’s race and parallels a national conversation about U.S. Supreme Court Justice Stephen Breyer.
Some Democrats want Breyer to retire while Joe Biden is in the White House and Democrats have a majority in the U.S. Senate and assuage fears of Mitch McConnell returning as Majority Leader after the 2022 mid-term elections.
Albin began his legal career as a deputy attorney general during Gov. Brendan Byrne’s administration and as an assistant Middlesex County prosecutor. He was a partner at the Wilentz law firm before Gov. James E. McGreevey nominated him as a Supreme Court Justice in 2002.
In 2011 and 2013, Albin was the target of vitriolic attacks from Gov. Chris Christie.
In addition to Albin, Justices Faustino Fernandez-Vina, Lee Solomon and Jaynee LaVecchia face mandatory retirement during the next gubernatorial term.
Following Albin, the next two justices who turn 70 are Republicans named to the bench by Christie: Faustino-Vina, known as Fuzzy, turns 70 on February 15, 2022; and Solomon, a former GOP assemblyman and Camden County freeholder, reaches his retirement age on August 17, 2024.
Justice Jaynee LaVecchia must retire by her 70th birthday on October 9, 2024. LaVecchia is technically the lone unaffiliated voter on the Supreme Court, but she is widely viewed as a Republican.
LaVecchia served as an assistant counsel to Gov Tom Kean in the 1980s and served in Gov. Christine Todd Whitman’s cabinet prior to her nomination by Whitman to Supreme Court in 1999. Her late husband, Michael Cole, was Kean’s chief counsel.
The current court has a majority of justices nominated by Republican governors.
If Ciattarelli wins and fills the four seats that would open up during his first term, five justices on the seven-member court would have been put there by Republicans.
Murphys’ re-election allows him to remake the top court and afford him a lasting legacy. His first new nominee, Fabiana Pierre-Louis, was 39 when she was nominated and could remain on the Supreme Court until September 2050.
Chief Justice Stuart Rabner who was named by Gov. Jon Corzine in 2007 and still has ten years left on the court, has previously voiced a preference for new justices to begin their service on September 1 so that the full court is present for the start of the new session.
Justice Walter Timpone stepped down two months before his 70th birthday last year so Pierre-Louis could be in place on day one of the 2020-21 session.
Albin’s July birthday appears to fit well with Rabner’s schedule. He would turn 70 during the summer recess, allowing a new justice to be in place on September 1, 2022.
Faustino-Vina is more complicated.
Murphy renominated him to a tenured seat on the court in June 2020, allowing him to serve an additional 14 months on the top court. That means he would be replaced about half-way through the 2021-22 court term, unless he leaves six months early – or if a new justice isn’t added until the summer.
In the event of a temporary vacancy, Rabner could elevate the senior appellate court judge to the Supreme Court if he needs a seventh justice.
Assuming Rabner serves until he’s 70, the next Chief Justice will be nominated by the winner of the 2029 gubernatorial election.
Another Republican on the Supreme Court, Anne Patterson, is eight years away from her retirement date. She was named by Christie.
Neither political party can claim moral high ground on election year Supreme Court appointments. At the federal level, Democrats argued it was acceptable in 2016 when Barack Obama nominated Merrick Garland for Antonin Scalia’s seat. The tables turned four-years later when Donald Trump filled Ginsburg’s seat.
Who would Murphy pick?
Murphy’s decision to nominate the first Black woman to the New Jersey Supreme Court was not surprising, since the governor has a penchant for diverse, historic picks.
So hypothetically, it’s not difficult to imagine Murphy nominating a woman to replace Albin. That would make New Jersey the 11th state in the nation with a female majority on the top court.
Should Albin retire early, Murphy would undoubtedly face calls to nominate the first Latina justice. There might be some irony to that: when McGreevey picked a new justice in 2002, the two finalists were Albin and former Public Advocate Zulima Farmer, who was both Black and Cuban.
Twenty years later, Latinas have still not broken their way onto the New Jersey Supreme Court.
If Albin leaves early – of when he departs next year – Murphy may not have an easy time assembling a short list of Latina candidates young enough to serve 15 to 20 years on the top court.
Possible candidates include Passaic County Prosecutor Camelia Valdes, 49, and Superior Court Judge Jaclyn Medina, a 42-year-old daughter of political refugees from Cuba who worked as a public defender before Murphy picked her for a judgeship in 2019. Hudson County Prosecutor Esther Suarez, a former Superior Court Judge, is currently on a short list for U.S. Attorney, but could also emerge as a replacement for Albin if she doesn’t get the federal post.
Two Seton Hall University law professors have the kind of credentials Murphy typically goes for: Solangel Maldonado, a 49-year-old Westfield resident, clerked for a federal judge and was the editor of the Journal of Gender and Law at Columbia University Law School; and Jennifer Oliva, 46 and a Jersey City resident, is a West Point graduate, U.S. Army veteran and Rhodes Scholar who clerked for two U.S. Court of Appeals judges and was Attorney General Beau Biden’s pick as the deputy Delaware Solicitor General.
Oliva, whose resume Murphy might jump at, has one clear obstacle: she’s not a member of the New Jersey Bar.
Judicial gerrymandering and retirements
If they remain in power next year, New Jersey Democrats must decide if they want to continue a tradition of a partisan balance on the Supreme Court that began after a new State Constitution was approved in 1947.
At the time, New Jersey was a politically competitive state. Now there are more than one million more Democrats than Republicans in New Jersey.
It’s not clear if Murphy, in a second term and with a Democratic Senate, would feel obligated to follow a tradition of partisan balance. The constitution does not require him to.
New Jersey has changed over the last 74 years and registered Republicans make up 22% of the electorate.
Some judicial observers also think it’s fair to have a renewed conversation over the mandatory retirement age.
When the modern-day founding fathers agreed on 70 as the judicial retirement age in 1947, the average life expectancy of males in the United States was 62, according to the National Center for Health Statistics. Since then – New Jersey didn’t get a woman on the Supreme Court until 1982 — life expectancy has increased to 76.
That’s left New Jersey with two issues: governors rarely nominate a Superior Court judge over age 60, since their career would span just a decade; and now judges forced off the bench at 70 often consider their post-judicial earning opportunities.
Some say that the pool of judicial nominees is severely limited by requiring attorneys to give up their law practice during the peak earning years, and that the intent of the 1947 Constitutional Convention was that judges would retire from the bench at age 70 — and just retire.