Senator suggests deal may be near for stalled Supreme Court nominee

Schepisi: ‘There may be pathway’ for Wainer Apter in new session

By: - January 10, 2022 6:55 am

Sen. Holly Schepisi (Daniella Heminghaus for New Jersey Monitor)

A Republican senator who has stalled the confirmation of New Jersey Supreme Court nominee Rachel Wainer Apter suggested the Englewood resident could see her nomination advance in the coming legislative session.

Sen. Holly Schepisi (R-Bergen) said she is moving closer to signing off on Wainer Apter’s nomination after engaging in talks with the administration on maintaining the tradition of partisan balance on New Jersey’s high court.

“I think we’re coming to, potentially, a resolution to some of the concerns that I’ve raised, and come the new session, there may be a pathway for us to get there,” she said, adding, “When we are putting forth candidates who very likely will sit on the court for upwards of three decades, it’s even more important to ensure that we have the appropriate ideological balance”

If confirmed, Wainer Apter would shift the ideological balance of the court in favor of Democrats.

Schepisi said if there is a deal to be brokered, it would happen “sooner rather than later” in the new session, which begins Tuesday.

Murphy nominated Wainer Apter, the director of the New Jersey Division on Civil Rights and a former senior staff attorney at the American Civil Liberties Union, last March. But the nomination has remained in limbo since, blocked by the Bergen County senator’s invocation of senatorial courtesy

Senatorial courtesy is an unwritten rule that allows lawmakers in the upper chamber to block gubernatorial nominees from their home county indefinitely and without providing a reason. They can also invoke courtesy against nominees from any towns they represent.

Murphy nominated Wainer Apter for former Justice Jaynee LaVecchia’s seat. LaVecchia retired on Dec. 31 before reaching the mandatory retirement age of 70.

Jose Fuentes, the presiding judge of the Superior Court’s Appellate Division, was appointed last week to temporarily fill the vacant Supreme Court seat, but the interim appointment is of little concern for Schepisi.

“A couple of months’ delay when you’re talking about somebody who may sit there for three decades, in the scope of timing, is a rounding error,” Schepisi said. “The court will continue to function and operate as it has in the past.”

Murphy will have to renominate Wainer Apter in the new session, something he has not yet committed to doing. A spokesperson for the governor declined to comment.

Wainer Apter will also have to win approval from Sen.-elect Gordon Johnson (D-Bergen), though that isn’t expected to pose much of a hurdle.

“I believe I would be supportive of her nomination at this time. I’ll sit down with my other Bergen County colleagues — or soon-to-be-colleagues — to discuss it further with them,” Johnson told the New Jersey Monitor Friday, adding he had not had a chance to fully review her resume.

Democratic Sens. Joe Lagana and Paul Sarlo, the other two Bergen senators with courtesy over Wainer Apter’s nomination, have already given her the green light.

New Jersey’s governors have kept to the state’s tradition of partisan balance on the high court with few exceptions, and Gov. Phil Murphy has suggested he would do the same. Still, aging judges will give the Democrat the opportunity to radically reshape the Supreme Court bench.

Justice Faustino Fernandez-Vina will reach the mandatory retirement age of 70 on Feb. 15 and Justice Lee Solomon will turn 70 in August 2024. Both are Republican. Meanwhile, Justice Barry Albin, a Democratic appointee, will age out of the court on July 7.

Concern Murphy might have a change of heart on the court’s balance in his second term has kept Schepisi from letting Wainer Apter’s nomination advance, she said.

“There have been assurances throughout the years on a whole host of things,” Schepisi said. “When push comes to shove, we’ve oftentimes seen — and not just this governor — but historically people go, ‘Oh, I’ve changed my mind’ or ‘I have now won re-election and it’s my prerogative to do what it is that I want.’”

In 2018, Murphy backed Republican Justice Anne Patterson’s reappointment to the court.

Wainer Apter could skirt by without Schepisi’s approval by moving to a town, likely in Hudson or Essex counties, where only Democrats can exercise courtesy. But legislators there could also attempt to extract a pound of flesh in exchange for their approval.


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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.