New Jersey Supreme Court nominee Rachel Wainer Apter won’t be confirmed before the high court begins its new session in September, Senate Judiciary Chairman Nicholas Scutari (D-Linden) told the New Jersey Globe Wednesday.
“It doesn’t appear that the nominee for the Supreme Court, Rachel Wainer Apter, will be confirmed in time for the new Supreme Court, but that’s not an unusual occurrence,” Scutari said. “The Supreme Court will bring up the most senior Appellate Division judge to sit on the court to hear those proceedings.”
The Senate Judiciary held what could be its final hearing until the lame duck session Wednesday, finishing a push to confirm a slew of Superior Court judges and other gubernatorial nominees.
Senate President Steve Sweeney (D-West Deptford) said later Wednesday that his chamber had no voting sessions planned before the November election, adding that could change in the case of an emergency.
Wainer Apter’s nomination likely doesn’t qualify, meaning she might not be confirmed until late this year.
As Scutari said, New Jersey’s high court has dealt with vacancies before. Traditionally, the Chief Justice appoints a senior judge of state’s Appellate Division on a temporary basis.
That could be Jose Fuentes, who was named to the bench by Gov. Jim Florio in 1993 and elevated to the Appellate Division in 2002, or Carmen Alvarez,
But there’s no guarantee Fuentes will be picked as an acting justice. Supreme Court Chief Justice Stuart Rabner has broad authority to select temporary members of the high court. Historically, senior appellate judges have been picked for the position, but there’s no requirement that be the case.
Murphy nominated Wainer Apter, a former ACLU staff attorney and onetime law clerk to U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, to fill Justice Jaynee LaVecchia’s seat on the New Jersey Supreme Court in March.
LaVecchia plans to retire on August 31, the end of the high court’s current session.
A spokesperson for the governor’s office said the delay was unfortunate but added they believed Wainer Apter was qualified and would eventually be confirmed.
There are other factors complicating the would-be justice’s path through the Senate. Two of the four senators, Senate Majority Leader Loretta Weinberg (D-Teaneck) and State Sen. Joe Lagana (D-Paramus), have signed off on Wainer Apter’s nomination, but State Sens. Paul Sarlo (D-Woodridge) and Holly Schepisi (R-River Vale) have not.
Senatorial courtesy, an unwritten but immovable rule, allows members in the upper chamber to indefinitely block gubernatorial nominations from their home counties. They don’t have to give a reason. Schepisi’s say-so could prove a major hurdle for the Wainer Apter, as it’s unclear whether the Republican is willing to back a nominee GOP lawmakers and gubernatorial candidate Jack Ciattarelli have criticized as liberal.
But Wainer Apter, who is currently director of the New Jersey Division on Civil Rights, could skirt the system by moving to a county where only Democrats can exercise courtesy.