Restoring order

After long-awaited vote, nominees Rachel Wainer Apter, Douglas Fasciale poised to join state Supreme Court

By: Katie Sobko
NorthJersey.com
USA Today Network - New Jersey

TRENTON - The Senate judiciary Committee on Thursday [10/13/2022] approved two Supreme Court nominees after a long-delayed agreement to restock the state's highest court, a key vote that clears the way for their confirmations next week. [10/17/2022]
..... The nominees, Republican Douglas Fasciale and Democratic Rachel Wainer Apter, took questions from the bipartisan committee ranging from their philosophy on the judiciary to their stance on the importance of personal opinions before they were approved.esy.
..... But the reception of the committee varied greatly. Fasciale, a Republican named to the high court last month, [09/2022] was asked about his time on the court, his those and his understanding of the constitution. not all of the committee members even raised questions during his time in the hot seat before he sailed through with unanimous support.
..... But Walner Apter, who's waited more than a year for her nomination to get to this point, spent twice as long answering questions focusing on abortion as well as the definitions of words such a "immigrant" and "emergency."
..... Governor Phil Murphy said in a statement he was "gratified" his nominees received bipartisan support and "I look forward to their confirmation by the full Senate Next Monday. [10/17/2022]

Wainer Apter's long wait

..... The appointment can't come soon enough, as the seven-member court has had three vacancies being temporarily filled for months. although Murphy announced his nomination of Fasciale last month, [09/2022] Wainer Apter has been waiting more than a year because Senator Holly Schepisi, R-Bergen, invoked senatorial courtesy.
..... The unwritten rule, designed as a check on power, allows senators to block judicial nominees from their home county. Wainer Apter lives in Englewood.
..... These nominations - Fasciale, a Republican, and Wainer Apter, a Democrat - maintain the 70-year tradition of having a political power balance on the state's highest court, which was a concern for the Bergen County Republican. Schepisis said last month [09/2022] that she met with Murphy and they "struck a deal," which is why she lifted the block.
..... On Thursday, [10/13.2022] both nominees thanked their families and Murphy in their opening remarks before driving into their takes on the role of the court. Fasciale also noted that he is currently in an advanced degree program and is working on his thesis with the intention of finishing soon.
..... When asked about his philosophy, Fasciale said it begins with the separation of powers.
..... "It's critical that the judiciary performs its role. the Legislature its role and the executive its role," he said. "We should not go beyond the compartmentalization of the role explicitly referenced in pour Constitution. It's implied in the federal constitution but appears specifically in our 1947 Constitution and it appears in our 1844 Constitution."
..... Wainer Apter, who has never served as a judge before, had a similar view.
..... "I believe that the role of a Supreme court justice in this state is only to exercise the judicial power and not the executive or legislative power, and to be very aware of the role of a judge in this state. And that means not seeking to make law but only to apply and interpret law," she said.
..... "I don't think democracy works if judges think they can decide cases based on their personal views or their moral views or their religious views or their policy views."

Sharp questioning about abortion

..... Wainer Apter faced much more tense questioning than Fascoale.
..... Both nominees wee asked about the importance of the supreme Court and the role of the U.S. Supreme Court but Senator Michael Doherty, R-Warren, took it a step further with Wainer Apter, grilling her about the decision earlier this year [2022] overturning federal abortion rights.
..... She noted how New Jersey's abortion rights were protected under a pair of past state rulings but also that the Legislature and the Murphy administration codified those rtarily at the age of 66. Last month, [09/2022ights into law this year. [2022]
..... Doherty took issue with some of Wainer Apter past activities regarding abortion, ciitng a news reprot, called it a protest that inlcuded hte buring of a U.S. Suprem Court decision regarding re[rpdictive rights wiht a mock funeral adn fake coffin. Wainer Apter sadi it was not a protest "but a mandatory c;ass." the professor did not agree with the court ruling and had "organized that to be our last class."
..... "I do not remember there being involved anything burning and I certainly did not build a coffin or whatever was involved in it," she said, adding that as a Supreme Court justice she would be bound by all supreme court decisions and "I would follow all Supreme Court decisions as written."
..... Ultimately Wainer Apter was approved with a vote largely alone party lines. Senator Jon Bramnick, R-Union, crossed the divide to vote in support with his Democratic colleagues for a final tally of 8-.

Supreme Court vacancies represented broader shortage

..... Wainer Apter was nominated to fill the vacancy created when Justice Jaynee LaVechia retired voluntarily at the age of 66. Chief justice Stuart Rabner took drastic action by temporarily promoting three appellate court judges to fill the gaps on the state Supreme Court. Rabner's order called up Judges Clarkson fisher Jr., jack Sabatino and Fasciale.
..... Rabner's order is the latest step taken amid a "crisis" of judicial vacancies statewide, causing massive backlogs for cases such as divorces and estate settlements.
..... Even with these nominations there is still a third vacancy on New Jersey's seven-member court.
..... Retirements, both voluntary and mandatory due to age, three seats open on the Supreme Court. Justice Barry Albin, who reached the mandatory retirement age of 70, retired earlier this summer. [2022] Justice Faustino J. Fernandez-Vina also retired because he turned 70.
..... Wainer Apter, a Harvard Law School graduate, once clerked for the late U.S. Supreme Court justice Ruth Bader Ginsberg.
..... Fasciale, a Seton Hall University and Seton Hall Law School graduate, is a former partner at Hoagland, Longo, Moran, Dunst & Doukas, according to the New Jersey Law Journal. He was appointed to Superior Court in 2004 by Governor James McGreevey. He is a Westfield resident, father of two sons and saxophone player.

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