Judiciary Committee Unanimously Endorses Fabiana Pierre-Louis for the Supreme Court; Full Senate Vote is Thursday

After a 95-minute hearing today, the Senate Judiciary Committee unanimously endorsed the nomination of Fabiana Pierre-Louis as an Associate Justice on what she called, in her opening statement, “the finest court in our nation.” The nominee’s opening statement detailed her legal background, beginning with her clerkship for Justice Wallace, whose seat she has been nominated to fill. She then became an associate at Montgomery McCracken Walker & Rhoads, where she worked on civil and white-collar criminal matters.

Her next stop was the U.S. Attorney’s Office. In addition to handling a wide variety of cases in all three offices (Newark, Trenton, and Camden), she was named Attorney in Charge of the Trenton office in November 2016. She had what she called “end-to-end” supervisory authority. She was also involved in the Trenton re-entry court, which helps former inmates integrate into society. In December 2018, she was named Attorney in Charge at Camden. Finally, in August 2019, she came full circle, returning to Montgomery McCracken as a partner handling white-collar criminal and other matters.

Ms. Pierre-Louis also discussed her “humble beginnings.” Her parents immigrated here from Haiti. English thus was not her first language. Her father was a taxi driver who owned his own cab, while her mother worked at a hospital, in patient transport. Her parents were present and were asked by Senator Weinberg to rise and be acknowledged.

Without recapping every question and answer, Chairman Scutari and others asked Ms. Pierre-Louis to address the role of the judiciary in our system of government. She responded that “no branch can perform a role reserved to another branch. The judiciary is to “preside over cases and controversies” but “there are matters that are reserved for the other two branches of government.”

In response to another question from Senator Scutari, the nominee said that stare decisis is “an important principle.” But she could not say whether and when it was appropriate to employ that principle, since it would depend on the facts, law, and circumstances of a particular case.

Both Senator Scutari and ranking member Senator Cardinale said that they had not heard anything negative about Ms. Pierre-Louis from any source. Senator Cardinale’s questions focused on her answer to several questions to the effect that she could not opine on an issue since it might come before the Court. He questioned that stance, but she emphasized that she wanted to avoid even the “impression” that an answer in the abstract shows partiality, on the issue addressed, which could undermine “confidence in the judiciary.”

Senator Cardinale then questioned why the Court believes that it can overturn a statute passed by the Legislature and signed by the Governor, with no recourse for anyone from such a decision. Ms. Pierre-Louis explained that assessing the constitutionality of statutes is assigned to the Court. There is recourse, she reminded him, including putting constitutional questions to the voters.

Senator Cardinale pointed to two specific rulings of the Court. In one case, he said, the Court overrode the authority of counties to fund prosecutors’ offices and required more money. The nominee said it was not appropriate for her to opine as she was not fully familiar with that case.

The Senator then cited the Mount Laurel cases. He questioned whether judges, who do not study planning in law school, know more about planning than planners employed by municipalities do. He also noted that the Governor at the time called the Mount Laurel decision a “communist idea” and asked whether Ms. Pierre-Louis was a Communist. She said she was not, and found it inappropriate to state whether she disagreed with that Governor. Finally, the Senator asked whether she knew the arguments made by a Rutgers law professor against Mount Laurel. Ms. Pierre-Louis said that the Senator knew those arguments better, and she invited him to state them instead.

Senator Weinberg asked about a sexual assault case on an army base that the nominee had handled. The Senator asked why she decided, despite the difficulty, to proceed with the prosecution, which she ultimately lost.

Ms. Pierre-Louis said it involved two New Jersey National Guardsmen. There was a celebration at which the woman drank so much alcohol that she was unable to get onto her upper bunk that night because she was so intoxicated. Her roommate left for a few minutes and came back to see sexual activity. The victim had no recall of what happened that whole day, including the incident, so the nominee had to rely on witnesses who were with her during the day and in the evening. But they had all been deployed to Qatar and did not return to the U.S. until a month before trial. She lost, but she was never afraid, then or since, to take on a case that was the right thing to do.

Senator Weinberg asked whether, as a partner in her law firm, Ms. Pierre-Louis represented business interests. She said that she represented persons under investigation by the New Jersey Attorney General, the U.S. Attorney’s office., or the Securities and Exchange Commission. Asked how that experience over the last year has shaped her outlook, compared to her work as an AUSA, the nominee said that being “on the other side of the table” had enabled her to see cases “from a different perspective.” She had something similar earlier in the hearing.

Senator Doherty began with questions about the Constitution’s role in government and society, and asked whether the people have the right to change it. Ms. Pierre-Louis answered “certainly.” The Senator then asked whether the government can declare that the Constitution does not apply and cited Governor Murphy’s use of the executive order relating to the upcoming election. He quoted the Governor as saying that the Constitution is “above his pay grade.” The nominee said that it was not appropriate to comment since might come before the Court. Senator Doherty did not like that answer, labeling it “a little game that goes on.”

The bulk of Senator Doherty’s questioning related to the fact that at the press event announcing her nomination, Ms. Pierre-Louis and others wore orange ribbons, which the Senator said was the symbol of an anti-gun organization that endorsed particular political candidates. The nominee explained that she was told that it was “Gun Violence Awareness Day,” and that the ribbon, which was handed to her to wear, represented the memory of those who had died of gun violence, nothing more.

Senator Doherty continued to question her about having endorsed a political agenda by wearing the ribbon, despite her testimony about the ribbon. Eventually, Senator Scutari broke in to invoke the Seinfeld episode where Kramer refused to wear an AIDS ribbon. Senator Doherty then suggested that the nominee had shown poor judgment by wearing the ribbon and urged her to learn a lesson going forward that judges must lead almost a “monastic life” when it comes to political issues.

Senator Singleton, who said that he has known Ms. Pierre-Louis for quite some time, said that the orange ribbon has been a symbol about gun violence. It arose, he said, out of a killing of a young girl in Chicago. He found it improper for anyone to assume what was in the nominee’s mind when she wore the ribbon.

After one statement by a member of the public, Senator Scutari moved the nomination. Senator Singleton seconded.

Senator Doherty, voting first, said that the nominee was qualified and up to the role. But “head of a pin” answers about the inappropriateness of answering questions about issues that might come before the Court, and the orange ribbon, concerned him. He emphasized that as a Justice, she did not have Governor Murphy as her boss and she needed to be independent of him. He voted “yes,” to approve the nomination.

Senator Corrado said that Ms. Pierre-Louis’s resume “speaks for itself.” She appreciated that the nominee had “sat on both sides.” She also praised Ms. Pierre-Louis’s work ethic, citing a case that she took over just four days before trial, for which she prepared quickly and well. She, too, was a “yes.”

Senator Cardinale said that, like all nominees, Ms. Pierre-Louis is “not perfect, but she’s pretty close.” He cited the danger of any nominee performing differently than she testified. But he saw less risk of that than normal here and voted “yes.”

Senator Bateman congratulates the nominee and said he was impressed with her credentials. He voted “yes.”

Senator Weinberg noted the “irony” of Ms. Pierre-Louis having started her career as Justice Wallace’s law clerk. “We’ve closed the circle.” The Senator said she was “proud to vote yes” for a new generation and a new balance on the Court, and for someone with very varied experiences in the law and otherwise, citing her family background and her role as a wife and mother.

Senator Sacco said “you’ll do a great job” and voted “yes.”

Senator Smith said that Ms. Pierre-Louis may be the most impressive nominee that he has seen. He voted “yes.”

Senator Singleton, saying he had nothing to add, voted “yes.”

Senator Sarlo, also voting “yes,” cited ms. Pierre-Louis’s credentials. He believed that she would never forget her family’s roots in Haiti, where the law of the land is not always the law. And he agreed with Senator Cardinale that she will not legislate from the bench.

Senator Poe, the Committee Vice-Chair, noted that many references highlighted Ms. Pierre-Louis’s background as a first-generation American and a Black woman. She praised the nominee’s integrity and character and said that this was a noteworthy historical moment. Senator Poe said she was “proud to vote yes as a Black woman.”

Chairman Scutari made it unanimous. He sad it was a misnomer to say that the nominee’s resume spoke for itself. Rather, he stated that Ms. Pierre-Louis spoke for herself even better than did her resume. He thought that she would infuse'”a little bit of youth and vibrance” to the Court.

The full Senate will vote on this nomination on Thursday of this week. There is no reason to think that Ms. Pierre-Louis will not be confirmed. She should be.