Justice Albin turns 70, creating third N.J. Supreme Court vacancy

New Jersey Supreme Court Justice Barry Albin turned 70 Thursday, triggering a mandatory retirement that will leave the high court with a record number of vacancies and no apparent plan to fill them.

Gov. Phil Murphy has nominated a successor to only one of the three vacant seats. The nomination of Rachel Wainer Apter, director of the New Jersey Division on Civil Rights, has remained stalled since Murphy made it last March.

Wainer Apter lives in Bergen County, giving Sen. Holly Schepisi (R-Bergen) senatorial courtesy over her nomination. The unwritten rule allows lawmakers in the upper chamber to indefinitely block gubernatorial nominees from their home county or legislative district.

They don’t have to give a reason, though Schepisi has previously signaled concern about maintaining the New Jersey Supreme Court’s tradition of partisan balance.  She did not return a call seeking comment Wednesday.

“We urge all parties involved to put aside political differences and act with haste to fill these seats, and the over 60 vacancies on the Superior Court,” said Jeralyn Lawrence, president of the New Jersey State Bar Association. “This action is in accord with their Constitutional duties and is critical to preserving the independence of this co-equal branch of government which is meant to protect the rights of our citizens.”

Albin, viewed widely as the court’s most progressive member, was the only sitting Supreme Court justice with experience as a public defender and civil rights lawyer. Wainer Apter, who was nominated to former Justice Jaynee LaVecchia’s seat, was previously an attorney at the American Civil Liberties Union.

Chief Justice Stuart Rabner in January temporarily elevated Judge Jose Fuentes, the Appellate Division’s presiding judge, to the Supreme Court seat once held by Justice Jaynee LaVecchia. But he has left empty the seat Justice Faustino Fernandez-Vina gave up when he retired in March.

In February, Rabner said further temporary appointments would imperil the court’s tradition of partisan balance. Counting Fuentes, there are two Republicans and three Democrats on the high court.

Historically, chief justices have pulled the most senior appellate judges to fill vacancies. Judge Clarkson Fisher Jr., who is second in seniority to Fuentes, is also a Democrat.

Fuentes’s temporary elevation does head off another potential problem: The New Jersey Supreme Court needs five members for a quorum, and Fuentes’s presence will keep it operating while other seats remain empty.

Sen. Brian Stack (D-Hudson), chair of his chamber’s judiciary committee, last month said the panel would convene once or twice during the summer to confirm more judges. A spokesman for Senate President Nicholas Scutari (D-Union) said the full chamber would convene during the legislature’s customary summer break for the same purpose.

That could help lawmakers chip away at New Jersey’s widespread Superior Court vacancies, but it’s not clear whether it will help plug the three holes on the state Supreme Court.

Murphy would first have to nominate another justice, and it’s not clear whether he has any plans to that. The governor declined to comment when asked about future Supreme Court nominations last month, and a spokesperson for the governor did not respond to a request for comment Wednesday.

The effect of empty seats

New Jersey’s stable of Superior Court judges has thinned along with the state’s Supreme Court bench.

There are 62 vacant Superior Court seats. The shortages are so extreme that courts in some counties have been forced to stop holding certain types of trials altogether to prioritize criminal, family, and domestic violence cases.

The stunning case backlog the courts accumulated during the pandemic ticked up slightly in May after eight months of consecutive decline, rising from 80,528 cases to 81,254. The backlog reached its 97,028-case peak in September.

The courts mark a case backlogged after it has waited without action for a set period of time, which varies depending on the nature of the case.

Lawrence, the Bar Association president, last month said the organization had tapped constitutional scholars to explore a lawsuit to force Murphy and legislators to nominate and confirm more judges.

Rabner — who declined to comment through a spokesperson — issued a dire plea to Murphy and legislators to fill out the bench, warning the Supreme Court bench would soon have just four confirmed members.

“Ask any students of the Constitutional Convention of 1947, and they will tell you that is not what the framers of the modern Constitution envisioned,” he said during his State of the Judiciary address. “Nowhere in the debates about the judicial branch did they contemplate a vacancy level of more than 40 percent on the state’s highest court.”