Today is Barry Albin’s last day as a N.J. Supreme Court Justice

Barry Albin’s tenure as an associate justice of the New Jersey Supreme Court ends tomorrow when he reaches the mandatory retirement age of 70.  He will have served 19 years, 9 months and 20 days.

His departure brings the total number of vacancies on the state’s top court to three out of seven seats.   There is no indication that Gov. Phil Murphy will name his replacement before he returns from a family vacation later this month.

Arguably the most liberal member of the state Supreme Court, Albin was nominated to the post by Gov. James E. McGreevey in 2002.   He is the last remaining justice of the McGreevey era.

The two met when they both worked as assistant Middlesex County prosecutors – Albin was ending his tenure there and McGreevey was just starting – and they became friends while Albin was a partner at Wilentz, a politically powerful law firm that boosted McGreevey’s political career.

McGreevey called Albin “a brilliant jurist with an incredible legal mind” and an advocate for “decency and goodness.”

“He is someone who deeply believes in this nation and its possibilities and its promise,” McGreevey said.  “He has dedicated the lions share of his professional life to jurisprudence.  No one has taken the responsibilities more seriously and afforded more time to his pursuit.”

Less than a year after Albin joined the court, he almost became chief justice, McGreevey told the New Jersey Globe.

Chief Justice Deborah Poritz up for renomination to a tenured term in 2003 and for a while, it was a real possibility that she might not have the votes in the Senate to win confirmation.

A Republican who had been named by Gov. Christine Todd Whitman — Poritz had served as Whitman’s chief counsel and attorney general – she angered some GOP senators for allowing Democrats to switch their U.S. Senate candidate from Bob Torricelli to Frank Lautenberg in October 2002, for an opinion that mandated spending money on urban school districts, and for a decision prohibiting the Boy Scouts from firing a gay scout leader.

McGreevey said he told Albin to get ready to become chief justice if the Senate rejected Poritz.

But Albin pushed McGreevey to help get Poritz over the finish line to protect the political independence of the court.

“You have to do this and you have to promise me right to that you’ll get this done for the sake of the state,” McGreevey recalled Albin as saying to him.  “For the sake of the court, you have to get this done.”

Democrats and Republican shared control of the Senate that year – each party had 20 seats – and some senators on both sides viewed Poritz as an activist justice.

With McGreevey’s help, the Senate confirmed Poritz by a 24-15 votes, just three more than she needed.  State Sen. Nia Gill (D-Montclair) was the only Democrat to vote against Poritz; five Republicans supported her.

McGreevey was not supposed to get Supreme Court nominations until 2003, when Gary Stein and James Coleman were set to reach the mandatory retirement age of 70.  But Stein, a Republican, left one year early, allowing McGreevey to shift the partisan balance of the court to the Democrats.  (The court had three members of each party and one independent, Jaynee LaVecchia, but McGreevey viewed LaVecchia, a former aide to Gov. Tom Kean and Whitman cabinet member, as a Republican.)

Albin was always the front runner for the Supreme Court, although others, including Donald Scarinci, the founder of an influential North Jersey law firm, was also under consideration.

He was nominated to the Supreme Court on July 10 and was confirmed two months later by a vote of 37-1.  Only State Sen. Gerald Cardinale voted against him.

Gov. Jon Corzine renominated Albin for a tenured seat on the court in 2009.  He was confirmed by a vote of 27-11, getting the support of all 23 Senate Democrats and four Republicans, including Minority Leader Thomas Kean, Jr.

Albin had served as a deputy attorney general under Gov. Brendan Byrne before moving to the Passaic and Middlesex prosecutor’s offices.  He joined the Wilentz firm in 1982.

Murphy will get to name five new justices to the Supreme Court,  if he can get the Senate to go along with his picks.  He had no trouble getting Fabiana Pierre-Louis confirmed in 2020, but his nomination of Rachel Wainer Apter in March 2021 has not yet been considered.   The governor has not nominated replacements for Justice Faustino Fernandez-Vina, who turned 70 in February, or Albin.

Chief Justice Stuart Rabner temporarily elevated an appellate court judge, Jose L. Fuente, to serve on the Supreme Court.  He has not yet announced how he will deal with additional vacancies, if at all – something that won’t necessarily be an issue until the 2022-23 court session begins on September 1.

The next vacancy is expected to come up in 2024, when Justice Lee Solomon, a Republican, turns 70.  But there is speculation that Solomon would not mind getting out early.

Rabner is 62 and can remain in office until June 30, 2030.