Bergen County Sen. Holly Schepisi, R-Bergen, has agreed to release the hold on Gov. Phil Murphy’s nomination of Rachel Wainer Apter to the New Jersey Supreme Court, nearly 18 months after she was first nominated to the New Jersey high court.
Apter is Murphy’s nominee to replace retired Justice Jaynee LaVecchia on the court. The confirmation process initially stalled when Schepisi invoked senatorial courtesy. Murphy renominated Apter earlier this year. Senatorial courtesy dictates that a confirmation hearing could not take place without Schepisi’s consent since Apter, too, is a resident of Bergen County.
“Very simply, Gov. Murphy has an unprecedented ability where he is nominating five of New Jersey’s Supreme Court justices that will shape to the court for the next 20 years,” Schepisi told the New Jersey Law Journal.
“For myself, this nominee can’t go up in a vacuum,” Schepisi said. “With respect to putting Rachel Wainer Apter forth as a nominee, that was an independent slot on the court.”
“So for the better part of the past year has been spent trying to push forth the process of what the balance of the court would ultimately look like,” Schepisi said. “For a court that has a history of advocacy, as a senator and a practicing attorney, I wanted to have assurances.”
Schepisi said that a meeting with Murphy on Thursday was the first time they sat down to speak directly about the Apter nomination. The meeting came after reports that Apter and her family would move out of their Bergen County home to bypass the hold on her nomination due to Schepisi’s invocation of senatorial courtesy.
“Senatorial courtesy is an important tool to force people to come to the table,” Schepisi said. “This state has been controlled by one political party for more than 20 years. This is one of the most important things in the state to ensure there is some level of balance and some level of negotiation.
“They were going to move her and her family to bypass senatorial courtesy. That came into play, as well as striking the best deal that could be struck,” Schepisi said.
“There is a Republican justice going up for nomination alongside Apter,” Schepisi said. ”It is someone where I am comfortable with his political ideology, but having people with different backgrounds and different judicial experiences is very important. It wasn’t just politics.”
The second nominee will be Judge Douglas M. Fasciale, according to a source from the governor’s office.
Fasciale is currently temporarily assigned to the Supreme Court from the Appellate Division. An order issued Aug. 15 by Chief Justice Stuart Rabner, temporarily appointed three Appellate Division presiding judges to the New Jersey Supreme Court: Fasciale, Clarkson Fisher Jr. and Jack Sabatino.
“I met with the governor directly and I am going to have a real seat at the table for the next judicial nominee,” Schepisi said. “We have discussed people in consideration for those last two positions on the Supreme Court and it is going to be similar to what the historic makeup of the court has been.
“The next step will be that Senate president and the president of Judiciary Committee will schedule the two nominees that are coming up now,” Schepisi said. “They will have to be voted on at the same time as part of the agreement. We are back in session at the end of this month and anticipate that to happen shortly afterward.”
Apter, a Harvard Law School graduate, clerked for the late U.S. Supreme Court Justice Ruth Bader Ginsburg, as well as for U.S. District Judge Jed Rakoff of the Southern District of New York and Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit. She also worked for the American Civil Liberties Union before becoming director of New Jersey’s Division on Civil Rights.
As an associate at New York-based Orrick Herrington & Sutcliffe, Apter was part of both the Supreme Court and appellate practices. She joined Murphy’s transition team in 2017, after serving as an ACLU senior staff attorney.
Before serving in the Appellate Division, Fasciale was the presiding judge of the civil division in the Union vicinage, appointed by Gov. Jim McGreevey. First assigned to the special civil part of the Law Division, Fasciale served in the family, civil and criminal divisions of the Superior Court.
Fasciale is a graduate of Seton Hall University and Seton Hall Law School, and began his career as a law clerk to Superior Court Judge John E. Keefe. Before his appointment to the bench, Fasciale worked in private practice as a certified civil trial attorney.
“We applaud the governor and Legislature for getting these filled,” Jeralyn Lawrence, president of the New Jersey State Bar Association, said. “We anticipate they will be incredible justices once they get through the nomination process.
“This is exciting and it is absolutely momentum,” stated Lawrence, managing partner and founder of Lawrence Law in Watchung. “But we were hoping to have a three-justice package.
“It is great to fill two but that still leaves one vacancy and let’s not forget about our trial courts, which I believe we have 59 vacancies and 12 retirements upcoming at last count,” Lawrence said. “Chief Justice Rabner said we can’t function properly beyond 30 vacancies. Let’s use the moment to get the third vacancy filled and work even harder to get trial courts filled.”
Attempts to reach Apter for comment went unreturned.