The Senate Judiciary Committee took a huge step towards restocking the undermanned New Jersey Supreme Court today, approving New Jersey Division on Civil Rights director Rachel Wainer Apter and Superior Court Judge Douglas Fasciale for two seats on the state’s top court. Fasciale was approved unanimously, while three Republican senators voted against Wainer Apter.
The vote sets the two nominees up for a vote in the full Senate, which will very likely come next Monday, October 17.
Wainer Apter and Fasciale are in some ways an odd pair. Wainer Apter, a former ACLU staff attorney and Ruth Bader Ginsburg law clerk, is a liberal Democrat who has had a more policy-focused career; Fasciale is a moderate Republican who’s served in the state’s judiciary for nearly two decades.
But thanks to a complicated, 19-month political dance, their nominations have followed a linked path through the treacherous political waters of the Senate.
Gov. Phil Murphy nominated Wainer Apter to succeed retiring Justice Jaynee LaVecchia in March 2021, but her nomination hit a roadblock when State Sen. Holly Schepisi (R-River Vale), who lives in Wainer Apter’s home of Bergen County, declined to give her senatorial courtesy.
Schepisi remained a holdout on Wainer Apter for a year and a half, and in the meantime, two other justices – Faustino Fernandez-Vina, a Republican, and Barry Albin, a Democrat – both reached the mandatory retirement age of 70 and left the court. While Chief Justice Stuart Rabner has elevated Superior Court judges in their absence, among them none other than Douglas Fasciale, the court currently has just four Senate-confirmed members, something Rabner has urged the governor and legislature to fix.
The stalemate finally broke last month, when Schepisi gave Wainer Apter courtesy as part of a deal with Senate President Nick Scutari (D-Linden) that also led to Fasciale’s nomination to fill Fernandez-Vina’s seat.
Tradition in New Jersey holds that the Supreme Court should have no more than four members of any given political party at one time, so Fernandez-Vina’s seat was considered a Republican one. The nominations of Wainer Apter and Fasciale have moved through the Senate together in part to assuage senators who may have been nervous about maintaining that partisan balance.
Fasciale, who came up first at today’s committee meeting, sailed through with little trouble. The Union County judge already had two major players on his side, Scutari and State Sen. Jon Bramnick (R-Westfield), which likely eased his path through the committee.
“[Fasciale is] one of the finest jurists that Union County has produced in a long, long time,” Scutari said. “I can recommend to you Doug Fasciale without any reservation whatsoever.”
As is standard in the Senate Judiciary Committee, Fasciale was asked how he feels about “legislating from the bench” – or exceeding the bounds of neutral arbiter of the law – to which he responded he firmly believes in separation of powers and the independence of the judiciary.
“I think my personal views are completely irrelevant to what I do,” Fasciale told State Sen. Fred Madden (D-Washington). “If I get the privilege of remaining on the Supreme Court, it’s not for me to say, personally, whether I think we should rewrite the law that you’ve enacted. You write the law, we interpret it.”
Senators did not directly bring up prominent issues that may come up before the state Supreme Court, such as abortion or gun laws. State Sen. Nellie Pou (D-North Haledon) seemingly approached such issues in a roundabout way, asking Fasciale what recent U.S. Supreme Court cases he considers significant, but Fasciale declined to directly answer the question.
As a moderate Republican, Fasciale may not be fully aligned with some senators from both parties, but senators were unanimous in praising the judge’s judicial record and conduct. All 11 members of the committee voted for his nomination.
Wainer Apter, in contrast, faced heavy questioning from Republicans, with a particular emphasis on her past career and her transition from a non-judicial role to a Supreme Court seat.
“You’re an advocate,” Bramnick said. “You’ve worked for the ACLU, you’re an advocate as an attorney, you’re an advocate for civil rights… I’m asking you to change from an advocate to a member of the judiciary.”
Republican senators variously pressed Wainer Apter on issues including abortion, non-citizen voting, anti-racism activism, qualified immunity, and gerrymandering. In response, Wainer Apter largely steered clear of taking definitive political positions and, like Fasciale, assured the committee that she had no intention of legislating from the bench.
“What assurances can you give us that your personal views will not matter on the bench, or that you won’t continue to advocate once on the bench?” asked State Sen. Kristin Corrado (R-Totowa), echoing a common theme at the hearing.
“I don’t think democracy works if judges think that they can decide cases based on their personal views,” Wainer Apter responded. “[Judges are appointed] only to decide cases that come before them, fairly and impartially.”
The final vote was 8-3, with three Republicans – Corrado and State Sens. Michael Doherty (R-Oxford) and Mike Testa (R-Vineland) – voting no. Bramnick and Madden both voted for Wainer Apter despite expressing some reservations, with Bramnick noting that Fasciale had been approved by every Democrat on the committee even though he’s a Republican.
“The experiences that this nominee brings to us are well worth an opportunity to [join] the Supreme Court,” Madden said during the roll call. “I’m really looking forward to the opinions rendered as we move forward.”
Alongside the two Supreme Court nominees, renominations for seven judges of the Superior Court, New Jersey’s lower-level court system that has a longstanding vacancy problem of its own, also advanced from the committee. Aimee Belgard, Craig Corson, Therese Cunningham, James Pickering, Kathy Qasim, Guy Ryan, and Robert Wilson were all approved unanimously to stay on the state judiciary.
Assuming Wainer Apter and Fasciale are confirmed by the Senate, they’ll be the second and third Murphy-nominated justices to sit on the Supreme Court, following Justice Fabiana Pierre-Louis, who became the first-ever Black woman to sit on the court when she was confirmed in 2020.
And Murphy’s likely not done yet. Albin’s seat is still unfilled, and Justice Lee Solomon is considering heading for the exits early – and even if he doesn’t, he’ll turn 70 in 2024, when Murphy will in all likelihood still be governor.
That means five of the seven justices might be Murphy appointees by the end of the governor’s second term, a stark change from 2018, when four justices had been appointed by Gov. Chris Christie (though the court often leaned to the left in its decisions anyways).
If Solomon does step down soon, it may open the way for another set of bipartisan court nominees moving through the Senate in tandem. If he doesn’t, that could lead to another long delay in replacing Albin and bringing the top court to full strength.
For now, though, the focus is entirely on Fasciale and Wainer Apter. They both still have to face the full Senate, but reaching the Judiciary Committee at all was by far the biggest hurdle, and come Monday, they’ll near-certainly become New Jersey’s two newest permanent justices of the Supreme Court.