N.J. Supreme Court vacancy nears six-month mark

By: - January 5, 2023 7:15 am

One state senator involved in judicial nominations said she hopes to have a new justice confirmed before lawmakers break for summer. (Getty Images)

Nearly six months after his retirement, former Supreme Court Justice Barry Albin’s seat on the state’s high court remains without a permanent successor.

The seat isn’t empty — Appellate Judge Jack Sabatino, temporarily elevated to the high court by Chief Justice Stuart Rabner in August, continues to act as the court’s seventh member — but the delay in naming an official replacement for Albin has left some legal observers dissatisfied.

“To still sit here in the beginning of 2023 and have not a nomination made, you can’t feel anything other than outraged and disappointed and embarrassed that they can’t figure this out,” said Jeralyn Lawrence, president of the New Jersey State Bar Association. “You wonder, what are they doing?”

Sen. Nellie Pou (Hal Brown for New Jersey Monitor)

Sen. Brian Stack (D-Hudson), the Senate Judiciary Committee chairman, did not return calls seeking comment. Sen. Nellie Pou (D-Passaic), the committee’s vice chair, said she hopes to have a justice confirmed before the Legislature breaks for the summer.

“It’s an important position. It’s one that we’re all very much aware of, and we’re looking for that to be complete,” she said.

The timeline for filling the seat largely depends on when Gov. Phil Murphy makes a nomination to the high court, and it’s not clear when he might do so. Murphy’s office declined to comment.

Recent vacancies on the New Jersey Supreme Court have taken even longer to fill, though politics played a large role in those delays.

Justice Rachel Wainer Apter saw her nomination stalled for 19 months after Sen. Holly Schepisi (R-Bergen) invoked senatorial courtesy, an unwritten rule that allows senators to indefinitely block gubernatorial nominees from their home county or legislative district.

Justice Douglas Fasciale was confirmed in October to fill a vacancy left when Justice Faustino Fernandez Vina retired eight months earlier.

With seats filled, a lack of urgency

Though the wait for Albin’s successor has stretched for months, there is less systemic pressure to fill his seat than there was for Murphy’s last two nominees.

Former Justice Jaynee LaVecchia’s Dec. 31, 2021, retirement from the high court was followed closely by the departures of Fernandez Vina and Albin, who both stepped down last year after reaching the mandatory retirement age of 70.

The wave of retirements left the court with only four confirmed members for more than three months last year, and it maintained a five-member quorum only because Rabner temporarily elevated lower court judges.

Most of the court’s remaining members won’t reach the mandatory retirement age or come up for renomination until after Murphy leaves office in early 2026. Justice Lee Solomon, the lone exception, will turn 70 on Aug. 17, 2024.

The court’s three-to-three partisan split gives Rabner a freer hand in appointing temporary replacements. The chief justice for months held off elevating more appellate judges to the high court for fear of upsetting the state’s history of partisan balance on the Supreme Court.

But some still view the temporary elevation as a problem, noting the state’s high number of Superior Court vacancies has largely persisted since the chief justice issued a dire warning during a speech last May about the vacancies’ effect on court operations.

“I don’t think any vacancy is acceptable, and this is not at all to diminish Judge Sabatino because he’s a star,” Lawrence said. “He’s brilliant and he’s wonderful, and I’m sure he’s sorely missed in the Appellate Division.”

Legislative elections could be a complication

2023’s legislative elections could leave the Supreme Court without a seventh permanent member for months longer if a justice is not confirmed before lawmakers approve a budget in June.

In 2021, legislators extended their customary two-month summer break to four months as they campaigned in that year’s round of legislative races, and they did not return to the Statehouse until after November. It’s unclear whether the Senate will do the same this year.

Even if they do, Pou said they might return to confirm a Supreme Court justice.

“The Senate is always able to come back for important votes. We’ve done that before. That’s never stopped us,” Pou said. “I think the Senate president is very conscious of that, and we are as well. A vote like that is an important one, and the judiciary committee can certainly be called in to a committee vote at any time.”

While the Legislature rarely holds proceedings in July or August, they have on occasion returned to address emergent issues, including last August, when the Senate Judiciary Committee and full chamber met to advance four Superior Court nominations.

All 120 of New Jersey’s legislative seats are up for election this year.

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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.