Home>Feature>What to watch for in today’s Senate hearings for two N.J. Supreme Court nominees

New Jersey Supreme Court nominees Rachel Wainer Apter, left, and Douglas Fasciale. (Photos: Edwin Torres for the Governor's Office and Joey Fox for the New Jersey Globe).

What to watch for in today’s Senate hearings for two N.J. Supreme Court nominees

Wainer Apter, Fasciale will face senators after long judicial vacancy crisis

By Joey Fox, October 13 2022 12:01 am

Today, after a year and a half of limbo, the Senate Judiciary Committee will at last hold hearings on two nominees to the New Jersey Supreme Court: Rachel Wainer Apter and Douglas Fasciale. The court has been hobbled by a steadily growing set of vacancies since Wainer Apter was first nominated in March 2021, and is now down to just four permanent members (out of seven seats), something that the two nominations will finally address.

The outcome of the committee meeting is something of a foregone conclusion. Once a nominee makes it to the Judiciary Committee, they’ll in all likelihood both clear the committee and get confirmed by the Senate; examples to the contrary are exceptional and very rare.

But just because Wainer Apter and Fasciale are both near-guaranteed to get a favorable committee recommendation doesn’t mean that the meeting itself isn’t worth watching. The Judiciary Committee is where nominees burnish their credentials and senators get to needle them with questions, and today’s meeting will no doubt include plenty of both.

Here are four things to watch for during the hearing.

How hard will Republicans push back on Wainer Apter?

A former ACLU staff attorney and law clerk for the late Supreme Court Justice Ruth Bader Ginsberg, Wainer Apter is undoubtedly a staunch liberal. She’d perhaps be the leftmost member of the court if confirmed to replace former Justice Jaynee LaVecchia, a Christine Todd Whitman appointee.

That has made Republicans, and some moderate Democrats, nervous about her nomination. Indeed, Wainer Apter’s nomination was blocked by State Sen. Holly Schepisi (R-River Vale) via senatorial courtesy for 18 months, a decision likely influenced by Wainer Apter’s liberalism.

Schepisi finally agreed to sign off on Wainer Apter in September as part of a larger deal that also led to the nomination of Fasciale. But that doesn’t mean Republicans are fully sold.

If Republicans do still harbor doubts about Wainer Apter, they’ll likely make them known at today’s meeting; State Sens. Michael Doherty (R-Oxford) and Kristin Corrado (R-Totowa) in particular are often fierce questioners of the nominees who pass through the Judiciary Committee.

The committee also happens to include each party’s most moderate senator – State Sen. Jon Bramnick (R-Westfield) for Republicans, State Sen. Fred Madden (D-Washington) for Democrats – and reactions from both men will be interesting to watch.

At Attorney General Matt Platkin’s committee hearing over the summer, Bramnick said he didn’t agree with Platkin on everything, but that he believes he has a duty to approve qualified candidates regardless of ideology. Whether Wainer Apter meets that same threshold is to be determined.

Madden, meanwhile, holds some policy positions at odds with the larger Democratic Party, especially on gun control and abortion, and he may approach Wainer Apter more skeptically than his fellow Democratic senators.

The ultimate roll call vote will provide an indication of how the full Senate might vote when it takes up Wainer Apter and Fasciale, which will likely happen next week. If Republicans strongly push back on her nomination, then Senate President Nick Scutari (D-Linden) – who is a consummate vote-counter and already knows how today’s votes will fall — will have to whip his caucus carefully to ensure a smooth confirmation.

Will any Democrats raise a fuss over Fasciale?

Fasciale, a moderate Republican from Union County who’s already serving on the Supreme Court on a temporary basis, has had a far less grueling nomination process. He was nominated last month by Gov. Phil Murphy to succeed former Justice Faustino Fernandez-Vina, a fellow Republican who reached the mandatory judicial retirement age in February – a decision in keeping with the longstanding tradition of maintaining partisan balance on the court.

Importantly, Fasciale’s nomination has already gotten signoff from several key Democrats. Murphy was the one who nominated him to begin with, and Scutari and State Sen. Joe Cryan (D-Union) both gave him senatorial courtesy, as did Bramnick.

The question, then, is whether any Democratic members of the Judiciary Committee push back on Fasciale, or whether they all align with their leaders in giving him an easy green light. It’s relatively rare for Republican judicial nominees to draw significant criticism even among Democrats on the committee, so the latter is perhaps more likely.

What is near-guaranteed is that, even if other senators raise any issues, Scutari and Bramnick – both friends of Fasciale’s – will counter them with extravagant praise for the longtime Superior Court judge.

What will the two nominees say about abortion?

Ask Americans today for the first thing they think of when they hear the words “Supreme Court,” and a huge number would likely say abortion.

They’d be thinking of the U.S. Supreme Court, of course, which overturned Roe v. Wade earlier this year and upended the Constitutional right to abortion. In New Jersey, abortion access is codified into state law, and the state Supreme Court would be unlikely to interfere.

But that doesn’t mean it won’t come up today. Regardless of what issues the state Supreme Court actually presides over, there’s a good chance senators will question one or both nominees on where they stand.

As a Republican, Fasciale could be questioned by Democratic senators on whether he believes there should be a guaranteed right to abortion in New Jersey. Republican senators, seeking to turn the issue on its head, may question Wainer Apter on whether she believes there should be any restrictions on abortion at all.

Does either nominee intend to legislate from the bench?

The abortion question implicitly leads to another question that often arises in the Judiciary Committee: how the two nominees feel about “legislating from the bench.”

One of the perennial concerns for senators on the committee is whether judicial nominees intend to approach their jobs as impartial arbiters of the law or as pseudo-lawmakers themselves. (There is a right answer to that question, in their view.)

The question poses some pitfalls for Wainer Apter, who doesn’t have past experience as a judge and who has spent much of her career in policy circles. Watch for senators to press Wainer Apter on whether she plans to legislate from her seat on the state’s highest court, and watch for her to give the only acceptable answer: of course not, senator.

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