Judge Doug Fasciale, left, and Senate President Nicholas Scutari during a hearing to advance Fasciale’s nomination to the New Jersey Supreme Court on Oct. 13, 2022. (Hal Brown for New Jersey Monitor)
A state Senate panel unanimously approved the nomination of Judge Douglas Fasciale to sit on the New Jersey Supreme Court on Thursday, with Fasciale facing few difficult questions during his hourlong hearing.
Fasciale, who has sat on the bench for 18 years in various court divisions and at varying levels of seniority, stressed his belief in the separation of powers spelled out in federal and state constitutions.
“I think it’s important that the judiciary does not legislate,” he said. “We’re judges. That’s not our role.”
Currently an appellate division judge, Fasciale received high praise from the Senate Judiciary Committee’s membership and Senate President Nicholas Scutari (D-Union), a chief booster who introduced the nominee to lawmakers at the start of Thursday’s hearing. Scutari called Fasciale “one of the finest jurists that Union County’s produced in a long, long time.”
“I can recommend to you Doug Fasciale without any reservation whatsoever as to his moral turpitude, as to his intellect, and to his work ethic,” said Scutari, a practicing attorney.
Thursday also saw the committee advance a second Supreme Court nominee, Rachel Wainer Apter, after much more intense questioning.
Fasciale fielded scattered queries about his judicial philosophy and, in some cases, how he would rule on a given issue.
The judge declined to give insight into the latter, saying answering such questions risked impugning his impartiality should a case involving similar issues come before the court after his confirmation.
The advancement of Fasciale’s nomination comes amid Democratic furor over rulings reversing Roe v. Wade and other sometimes long-standing precedents that have sent the public regard for the U.S. Supreme Court to near-record lows.
Amid the tumult, some have called for greater transparency and responsiveness to the public, but Fasciale, a Republican, said New Jersey’s jurists do not need to be more publicly accessible on contemporary issues, noting the reasoning behind each court decision is spelled out in writing.
“I don’t think that justices should be on the street corner explaining their decisions. Our decisions speak for themselves. I think to a large extent, the legitimacy of the court depends on the persuasiveness of the opinions they are writing,” he said. “Our job should be focusing on the record that’s law and explaining to the public our reasons and conclusions.”
Fasciale faced no questions specific to his judicial record apart from one from Sen. Fred Madden (D-Gloucester), who asked Fasciale how he would handle court precedent that went against his personal beliefs.
“I can answer that question very directly. I think my personal views are totally irrelevant to what I do,” the nominee said.
The committee approval marks the closest lawmakers have come to filling a vacant state Supreme Court seat since former Justice Jaynee LaVecchia’s December retirement cut down the court’s ranks.
Three of the body’s seven seats are vacant. The court lost two members — Faustino Fernandez-Vina in February and Barry Albin in July — after the two men hit the mandatory retirement age of 70.
Fasciale, along with Wainer Apter, could be confirmed by the full Senate as early as Monday.
If they’re confirmed, the New Jersey Supreme Court will be down to just one vacancy. Gov. Phil Murphy has yet to make a nomination to that seat, though Chief Justice Stuart Rabner has temporarily elevated lower-court judges to fill the vacancies on his bench.
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