Until Gov. Phil Murphy and the State Senate can sort out delays in confirming New Jersey Supreme Court justices, it will be up to Chief Justice Stuart Rabner to decide when – or if – he will elevate appellate court justices to the top court on a temporary basis.
The State Constitution gives Rabner the authority to call up replacement justices if he feels the Supreme Court needs more bodies. The pool for the call ups consists of the most senior appellate court judges, although Rabner has some flexibility.
Barry Albin, an associate justice since 2002, will be forced into mandatory retirement tomorrow when he turns 70. That leaves the Supreme Court with just four of the seven seats filled.
Albin’s departure comes during the slowest time on the court’s calendar. Their 2022-23 term begins on September 1.
In March 2021, Murphy nominated Rachel Wainer Apter, the director of the state Division of Civil Rights, to serve as an associate justice following Jaynee LaVecchia’s retirement announcement. Wainer Apter has been unable to secure signoff from a home county senator, Holly Schepisi (R-River Vale). Under the unwritten rules of senatorial courtesy, the Senate has been unable to proceed on her confirmation, leaving Wainer Apter in limbo for the last sixteen months.
Rabner elevated the senior presiding appellate court, Jose Fuentes, to be temporarily assigned to the Supreme Court on January 1 after LaVecchia, who had delayed her retirement, finally stepped down.
Another justice, Faustino Fernandez-Vina, turned 70 on February 15. The following day, Rabner announced that he would not elevate a second replacement justice and that “the Court will continue to operate with six members.”
Rabner cited a 75-year tradition of the Supreme Court having “no more than four members…affiliated with a single political party.”
Right now, Rabner, Albin, Fuentes and Fabiana Pierre-Louis, who was named to the top court by Murphy in 2020, are Democrats. Justices Anne Patterson and Lee Solomon are Republicans, as was Fernandez-Vina.
That leaves room for one more Democrat on the Supreme Court. Of the six most-senior appellate judges, five are Democrats and two are Republicans.
Next in line to serve on the Supreme Court on a temporary basis is Clarkson S. Fisher, Jr., an appellate judge since 2003. His late father was a Republican assemblyman from Monmouth County and a federal judge – but he is a Democrat.
But Fisher is not an easy pick for Rabner. He turns 70 on November 29 and it’s not necessarily helpful to elevate someone who will be gone less than three months into the next court session.
Jack Sabatino, who has served as an appellate judge since 2006, is also a Democrat. So is Carmen Messano, who trails Sabatino in seniority by eight months.
Should Rabner decide to elevate a seventh temporary justice and a third Republican, it would be Douglas Fasciale. Fasciale is already under consideration for Fernandez-Vina’s seat.
After Fasciale in seniority are another Republican, Richard Hoffman, and a Democrat, Allison Accurso.
A smaller Supreme Court gives justices a higher percentage of influence. When the court is full, each Justice has 13.29% of the votes to certify a case for consideration or to issue an opinion. That percentage increases to 25% in a four-member court, 20% with five seats filled, and 16.67% with six justices.
Judges temporarily assigned to the Supreme Court can wield tremendous influence.
Over the last seven month, Fuentes cast the deciding votes on the releases of two high-profile convicted murderers.
Fuentes was called up to the Supreme Court last December to break a 3-3 deadlock on a vote to overturn the conviction of Michelle Lodzinski for the murder of her six-year-old son, Timothy Wiltsey.
In a 3-2 vote in May, with Fuentes voting in the majority, the Supreme Court ordered the release of 85-year-old cop killer Sundiata Acoli, a former Black Liberation Army member once known as Clark Edward Squire, was involved in perhaps the most infamous assassination of a New Jersey law enforcement official in state history. Along with Joanne Chesimard (now known as Assata Shakur), Acoli was convicted of gunning down State Trooper Werner Foerster after being pulled over on the New Jersey Turnpike in 1973. Chesimard escaped from the Edna Mahan Correctional Facility for Women in 1970 and is now lives in Cuba, where she has been granted political asylum.
Rabner does not have the option of sending Fuentes back to the appellate division, since the Constitution requires five justices for a quorum.
Editor’s note: an earlier version of this story incorrectly stated that the New Jersey Supreme Court could operate five four justices. Five are required.