With New Jersey Supreme Court Justice Barry Albin set to hit the mandatory retirement age of 70 on July 7, it’s possible that the state’s highest court will soon have only four permanent members, down from seven. Yet despite the far-reaching implications of the court’s membership, there has been essentially no movement by the state’s leaders to bring the court back to a full complement.
The parade of vacancies began in March 2021, when Justice Jaynee LaVecchia voluntarily announced her retirement and presented an unexpected opportunity for Gov. Phil Murphy to put his mark on the Supreme Court.
Murphy had already nominated Justice Fabiana Pierre-Louis, the first Black woman to serve on the court, the previous year; with the moderate LaVecchia’s retirement, he had the chance to put a liberal stalwart in her place and reshape the entire court. His nominee, New Jersey Division of Civil Rights director Rachel Wainer Apter, was triumphantly unveiled a week after LaVecchia signaled she would be stepping down.
But it’s now been more than a year, and Wainer Apter remains as much of a Supreme Court justice as she was on the day she was born. State Sen. Holly Schepisi (R-River Vale) has used senatorial courtesy to delay Wainer Apter’s nomination indefinitely, and no one in the governor’s office or the legislature seems to have made her confirmation a top priority.
LaVecchia was joined in retirement by Republican Justice Faustino “Fuzzy” Fernandez-Vina in February, when he hit the mandatory retirement age. Murphy has still not announced a nominee to replace Fernandez-Vina, despite knowing the precise day when he would have to step down for years in advance.
When Albin, a Democrat, reaches that same milestone in July, it will potentially mean the court has only four Senate-confirmed members.
Chief Justice Stuart Rabner elevated Superior Court Justice José Fuentes to temporarily replace LaVecchia, but elected to leave Fernandez-Vina’s seat vacant to preserve the partisan balance of the court; it’s not clear what he’d do in the event of a third opening. (Traditionally, there have always been at least three Democratic and three Republican members of the court, an unspoken rule followed by governors of both parties.)
Asked today about the two vacancies, Murphy said that there’s “no news to report” – a line he said verbatim in February – though he emphasized that having a full complement of justices is important.
“In a perfect world … we’d want to be at full strength,” he said. “We’re working very hard to take some steps in the direction of getting that back up to full capacity.”
Pressure from the legislature has also been lacking. Neither Senate President Nicholas Scutari (D-Linden) nor his predecessor Steve Sweeney (D-West Deptford) strongly pushed for Wainer Apter’s confirmation, at least not publicly, and the state Supreme Court wasn’t even close to being a real campaign issue in last November’s legislative elections.
Schepisi, for her part, has said for months that she’s still making up her mind, and the New Jersey Globe learned today that she remains undecided about how she intends to proceed.
There are still some avenues open to Murphy should Schepisi continue to be a holdout. Wainer Apter could move, most likely to Mercer County, or Murphy could simply choose someone new.
But when the Fiscal Year 2023 budget is finalized in June, the legislature will enter its summer recess, and likely wouldn’t consider any nominations until it reconvenes in the fall. If Murphy and legislative leadership are unable to push at least one Supreme Court nominee through before then, the court may have to begin its yearly cycle of cases in September with only four permanent members.
That could have a significant impact on the way certain cases are decided. Already, one case reversing an expansion of Miranda rights has been cited as a decision that may have been decided differently had Wainer Apter been on the court; with fierce battles raging over school desegregation and educational curricula, vacant seats could be determinative of many more judicial outcomes.
As long as the current status quo stays in place – Murphy remains set on Wainer Apter, Schepisi remains undecided, other vacancies remain unaddressed until the LaVecchia seat is filled – the Supreme Court will have to keep making do with a steadily dwindling number of members, and a state government that doesn’t seem to care.