Senate panel clears long-blocked N.J. Supreme Court nomination

By: - October 13, 2022 7:25 pm

Rachel Wainer Apter, left, testifies during a hearing to advance her nomination to the New Jersey Supreme Court on Oct. 13, 2022. (Hal Brown for New Jersey Monitor)

Attorney Rachel Wainer Apter took a big leap Thursday toward the pinnacle of any legal career — a seat on the state Supreme Court — when the Senate Judiciary Committee approved her long-stalled nomination Thursday.

Wainer Apter, a Democrat who lives in Englewood, heads the state Attorney General Office’s civil rights division. A Harvard Law graduate, she also has worked for the American Civil Liberties Union and clerked for federal judges, including the late Supreme Court Justice Ruth Bader Ginsburg.

She and Appellate Judge Douglas Fasciale, a Republican whose nomination also won the panel’s nod Thursday, could go before the full Senate for confirmation as soon as Monday, filling two of three vacancies on the seven-seat court.

“Serving on the court is the most important trust that can be put in an attorney in our state,” Wainer Apter testified. “The cases that the court hears are of fundamental importance to the state and to all of us as individuals.”

The process was hardly painless, though, with senators grilling Wainer Apter far longer and more rigorously than they questioned Fasciale earlier in the day.

Some of the panel’s GOP members seemed especially piqued about two things — Wainer Apter’s lack of judicial experience and her “advocacy.” They quoted passages they found objectionable from briefs she’d written during her civil rights work and dug up news coverage of an abortion-rights protest she participated in when she was a Harvard student.

They interrogated her on everything from whether she thought Gov. Phil Murphy overstepped when he declared state control early in the pandemic to whether she regards the Constitution as a living document.

Sen. Kristin Corrado (R-Passaic) accused her of being “a policymaker and judicial activist.”

“Define an immigrant,” Corrado challenged, in a line of questioning that eventually ended with Corrado asking Wainer Apter if she thought non-citizens should be allowed to vote.

Sen. Jon Bramnick (R-Union) said he worries she could not be neutral, as a judicial office requires.

“You’re an advocate for causes, you’re an advocate as an attorney, you’re an advocate in civil rights,” Bramnick (R-Union).

If confirmed as a justice, Wainer Apter insisted she would follow existing laws and judicial precedents in judging cases and leave legislating to legislators. She repeated some variation of the same refrain to many questions: “I believe it’s a decision that should be made by the Legislature and the elected officials in the state.”

After two hours, the panel approved her nomination, with Corrado and Sens. Michael Doherty (R-Warren) and Michael Testa Jr. (R-Cumberland) voting no.

Fasciale’s nomination was cleared unanimously.

If confirmed, Wainer Apter will replace former Justice Jaynee LaVecchia, who retired on Dec. 31 before reaching the mandatory retirement age of 70.

Murphy first nominated Wainer Apter for a seat on the Supreme Court in March 2021, but Sen. Holly Schepisi (R-Bergen) stalled the nomination through senatorial courtesy until last month when she struck a deal with Murphy to allow Wainer Apter’s nomination to proceed if he nominated Fasciale.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.