Editor’s Note: This is the last of nine installments of What Makes a Court Supreme, Justice Daniel O’Hern’s book about his years on the Wilentz Court.

Chapter IX: The “Clark”

No court can be supreme without the help of many others, and we had the best. The head of our administrative staff was Stephen W. Townsend, the clerk of the New Jersey Supreme Court. We called him the Clark; it was Justice Robert Clifford’s way of making us sound like a British court. I often told Townsend he was wasting his time with us, that he could have made $250,000 a year with a Wall Street law firm. He is witty and brilliant, but most of all wise.

The clerk never sits with the justices when they deliberate on opinion assignments or on circulating opinions, but our discussions on opinions usually overlap with other discussions on motions, certifications and calendar matters. Townsend never interjected himself into our discussions, but an arched eyebrow, a furrowed brow or a change in the tone of his voice told us all we needed to know.

The custom of the Court was for the Clerk’s Office to prepare memoranda summarizing the thousands of motions and hundreds of cases of attorney-discipline we reviewed each year. Townsend’s memos were gems, laced with humor, sometimes sarcasm, but always correct and to the point. Here is one:

SUPREME COURT OF NEW JERSEY

OFFICE OF THE CLERK

DATE: January 20, 1998

INTEROFFICE MEMORANDUM

TO: Supreme Court

FROM: Stephen W. Townsend

RE: M-650-97 William Fleuhr v. City of Cape May (A-136-97)

Nature of Motion: M-650 Appear amicus curiae

Moving Party: Surfrider Foundation and Surfers’ Environmental Alliance-SEA

History: The Court granted cert in this case in October. It will be argued later in the term (probably March). The issues involve municipal immunity for liability for injuries to swimmers in heavy surf. “Negligent supervision” features prominently in the argument of counsel.

The within motion was filed 1/14/98. In it, movants explain that they are world-wide non-profit organizations that are “devoted to the protection and enhancement of the world’s ocean resources through research, education and activism.” The New Jersey chapter has been involved in many beach access issues, particularly as they relate to surfing.

Movants wish to file a brief and participate in oral argument on the appeal. Movants are opposed to the “closing” of the ocean to surfers during “high surf” conditions. They have prepared legislation that was prefiled for the 1998 session of the Senate.

RECOMMENDATION: Throw your boogie boards in your woodies and have movants join the fun.

And here is another:

SUPREME COURT OF NEW JERSEY

OFFICE OF THE CLERK

DATE: February 22, 1995

INTEROFFICE MEMORANDUM

TO: Supreme Court

FROM: Stephen W. Townsend

RE: M-***

Nature of Motion: Leave to file a brief and argue amicus curiae

* * *

Counsel for movants filed the attached. In it, movants argue that their participation in the appeal will assist the Court. They contend that they are dedicated to protecting freedom of information rights and the First Amendment interests of the news media. Their participation, including oral argument, is sought as a means of ensuring that the Court has the benefit of their valuable insights and arguments.

RECOMMENDATION: Grant the motion, limited to the filing of a brief. If you let one [party] in, you may get a ton of applications you do not really want. That having been said, however, if [Attorney A or B requests it], I would let either or both of them argue. If that demonstrates some sort of bias, why then who among us is free from the taint that encumbers the human condition? As Shakespeare once said to Christopher Marlowe at the opening night of Much Ado About Nothing, “Let she who is without sin stone the first cast.” Grant “brief only” and then — Exeunt all, stage left.

Townsend knew the foibles of the justices, especially the claim by several of them to be tennis players. In this expurgated disciplinary matter, he feigned to appeal to these justices’ latent favoritism for tennis players.

SUPREME COURT OF NEW JERSEY

OFFICE OF THE CLERK

DATE: March 10, 1986

INTEROFFICE MEMORANDUM

TO: Supreme Court

FROM: Stephen W. Townsend

RE: D-IMO ***

The DRB [Disciplinary Review Board] recommends a three-month suspension for respondent based on his conviction for presenting a fraudulent document to a court. Mitigating factors kept the suspension at a minimum.

* * *

Respondent was admitted to the bar in ****. He had no prior disciplinary history.

In the ethics proceedings, respondent essentially admitted all charges against him.

* * *

Respondent sought to mitigate the sanction against him by listing a host of personal problems. The record was not entirely clear about the timing of some of these problems, but the DRB was persuaded that several of them affected respondent’s actions. Among the problems raised were:

1. Severe depression, including an involuntary commitment between July and August;

2. A replacement of his right hip;

3. A later replacement of his left hip;

4. His wife’s desertion and subsequent action for divorce (no date given);

5. His resistance to taking the medication prescribed for his bi-polar condition; and

6. His inability to play tennis any longer, which seriously affected his self-image. He had played tournament-level tennis since **** and “had become a well-known and respected player.”

The DRB noted that there were indications of alcohol abuse and gambling excess in the record but that respondent had not relied on those problems as mitigating factors.

The DRB concluded that respondent’s “serious” misconduct merited a suspension. Only numerous “compelling” mitigating factors led the Board to recommend a three-month suspension.

RECOMMENDATION: Thank God for tennis! If this guy played recreation b-ball or senior hockey, he would have been down the tube. I note that many of his “mitigating factors” actually involve events or additional stress that occurred after the criminal acts that are the basis of the ethics charges against him. As Gussie Moran once said to Bobbie Riggs, “What a racquet!”

I have several recommendations.

1. Tennis-playing Justices should not recuse themselves on the basis that they can relate to respondent’s loss of self-image (we would lose a quorum).

2. The report and recommendation of the DRB should be accepted and respondent suspended for three months.

3. The Order of suspension should provide that respondent must demonstrate that he is physically and mentally fit to return to the practice of law before he can be reinstated. A proctorship should be imposed, if deemed necessary by the DRB at that time.

Here was Townsend’s response to a question of whether Justice Gary Stein and I could fit a trip to the French Open into the Court’s schedule:

SUPREME COURT OF NEW JERSEY

OFFICE OF THE CLERK

DATE: March 10, 1998

INTEROFFICE MEMORANDUM

TO: Justice O’Hern

Justice Stein

FROM: Stephen W. Townsend

RE: 1999 French Open

Mirabile dictu! Q’est ce que c’est? Il est une idee formidable. Les Open Francais est 24 Mai au 6 Juin, 1999. Pas mal. Nous avons ici une conference sur 25 Mai; quel dommage. Ah, peutetre une petite adjustement? Pah. Non, non, non.1 Avez-vous satisfe? Bon.2

__________________________

1. Okay. The Open runs from May 24 to June 6. We have a conference on May 25. Well, what the heck; who needs to see the first couple of days, anyhow. You could go after Memorial Day (May 31) and catch the last five or six days; i.e., the best stuff.

2. The foregoing information is compliments of Phyllis Edith Everett Mace Townsend, by way of those wonderful folks at the Ewing Branch of the Mercer County Library. The pigdin French is all mine. Merde.

Townsend’s relationship with Chief Justice Robert Wilentz is hard to put into words. There was a mock formality to it when we were together at conferences exchanging thoughts about Court business. The Chief Justice would sometimes show displeasure when Townsend offered a contrary suggestion. It was an occasion for us to ask in feigned exasperation: “Who do you think is running this Court, Chief? — You or Stephen?”

But the clerk and his entire staff were invaluable contributors to the greatness of the Wilentz Court. Our elbow clerks (the young men and women who worked with us for one year after law school) worked under Townsend’s supervision. Their contributions to the work of the Court were immense. They were bright, idealistic and committed aides. I hesitate to name any without naming all, but I will mention a few. Jack Sabatino, one of Justice Marie Garibaldi’s clerks, is now an Appellate Division judge. Peter Verniero was a clerk for Justice Clifford, served as state attorney general before he became a member of our Court and now is in private practice. John Farmer Jr. was a death-penalty clerk for two terms, served as state attorney general and senior counsel to the 9/11 Commission, and now is the dean at Rutgers Law School-Newark. Janine Bauer was our first death-penalty clerk and now is in private practice.

New clerks were a joy to us each term, bringing fresh insights and dogged preparation for the most part. And they enjoyed working for the Court.

Chapter X: The Past as Predictor

At either end of the 15 years I have described, I served with exceptional justices. If the current Court were permitted to serve an uninterrupted span of years, equivalent to those of the Weintraub and Wilentz courts, I am sure it would achieve the same national distinction.

Justice Morris Pashman was an outstanding jurist. In the 13 months I served with him, he wrote many significant opinions. Hill v. Hill held that when a wife earned the money to support the marital household while the husband obtained his professional degree and license, a fair measure of rehabilitation should be given to her. In General Assembly v. Byrne, Justice Pashman strengthened the separation of powers by invalidating the Legislative Oversight Act because it impeded the executive in its constitutional mandate to execute the laws faithfully. In Maressa v. New Jersey Monthly , he wrote to sustain the freedom of the press.

Justice Sidney M. Schreiber, with whom I served for three years, was a workhorse of the Court, with perhaps the broadest practice experience of any member. In re Conroy carefully crafted the standards for determining the right to die. Dickinson v. Fund for the Support of Public Schools invalidated a constitutional amendment that was a giveaway of state lands. And Matthews v. Bay Head Improvement Association sustained the interest of citizens to beach access. These were major national decisions.

In the four years I served with Chief Justice Deborah T. Poritz, she demonstrated a similar capacity to write nationally important precedent. In Dale v. Boy Scouts of America , she wrote that the Boy Scouts did not have the constitutional right to exclude the plaintiff from participation in the organization as a scoutmaster solely because of his sexual preference. Although the U.S. Supreme Court later reversed, it appears to have been a hollow victory for the Boy Scouts in that the many groups that had previously supported the organization were dismayed by its expressly discriminatory policy. In New Jersey Transit PBA Local 304 v. New Jersey Transit Corporation , Chief Justice Poritz established national standards for drug testing in safety-sensitive positions.

During the six years I served with Justice James H. Coleman Jr., he showed the ability to write significant opinions. In Brill v. Guardian Life Insurance Company of America , he renewed the standards for grant of summary judgment. In State v. Carty , he drove the nail into racial profiling by holding that traffic stops must be based on a reasonably articulable suspicion. While on the Appellate Division, he foreshadowed the U.S. Supreme Court decision in Batson v. Kentucky , holding in State v. Gilmore that the race-based exercise of pre-emptory challenges in criminal trials violated the constitutional rights of defendants.

I had less than one full term to serve with Justices Virginia Long, Verniero and Jaynee LaVecchia, Gov. Christine Todd Whitman’s choices to succeed Justices Alan B. Handler, Stewart G. Pollock and Garibaldi. And of course, I did not serve with James R. Zazzali, whom Gov. Whitman nominated to succeed me and whom Gov. Jon Corzine later nominated as Chief Justice. Each demonstrated or has demonstrated the capacity to continue the Court’s traditions.

I will say that the Court’s work becomes harder as the years go by because of the increase in volume. For example, the worksheet for the Court’s first conference for the 1957-58 term had 16 motions, 15 petitions for certification and one case of attorney discipline. The first conference of the 1999-2000 term, on the other hand, had 20 motions, 92 petitions for certification and six cases of attorney discipline.

Chapter XI: What Makes a Court Supreme?

First, I will candidly admit that judging judges is a bit like judging figure skaters; a lot is in the eye of the beholder.

Harvard Law School Professor Paul A. Freund offered worthy advice in his review of Cardozo: A Study in Reputation, a book by Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals. “Reputation and merit are not always the closest of companions. John Chipman Gray, a professor of law at Harvard at the turn of the century, conferred this encomium on his early predecessor Joseph Story: he was ‘a man of great learning, and of reputation for learning greater even than the learning itself,’ Freund wrote in The New York Times on Nov. 4, 1990.

No member of the New Jersey Supreme Court was a demigod in the vein of Justices Benjamin N. Cardozo or Oliver Wendell Holmes Jr. Like the casts of the television shows “Cheers or “Seinfeld, to which my clerks introduced me, the ensemble possessed qualities that enabled it to succeed as a group.

The most important characteristic of a quality court is the courage to follow the law in spite of the greatest of pressures. In In Matter of Randolph, quoting from S.Rep. No. 711, 75th Cong., 1st Sess. 14 (1937) (rejecting the Court-packing plan), the New Jersey Supreme Court summed up the ideal of judicial independence in 1986:

[W]e would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact.

In his resignation letter to Gov. Whitman on June 13, 1996, Chief Justice Wilentz expressed concern for the judiciary. He wrote:

We have a fine court system, still supported by the people of New Jersey in these somewhat difficult times. That support is one of our most important sources of strength. The ultimate source of our strength and integrity remains our own commitment to judicial independence, total and uncompromising.

A second important quality in a court is a breadth of perception, the residue of human experience that enables a judge to place issues in perspective. A judge whose entire career has been limited to the defense of antitrust cases will perhaps not grasp the proper relationship among the branches of government. Our Court had members with broad experience in public and private life, attained through a diversified legal practice, teaching or a combination of public service and private practice. Judicial experience is a factor to be considered in supporting nominees to the Court, but should not be the determinative factor. For example, trial experience is often regarded as an important qualification for bench. Yet, Learned Hand, generally regarded as the greatest judge never to have sat on the U.S. Supreme Court, was an ineffective and somewhat inexperienced trial lawyer. The point is simply this: Experience is not the best predictor of performance.

In his book, Judge Posner attributes much of Justice Cardozo’s reputation to his skill with words. Judge Posner said that when Justice Cardozo, as a member of the New York Court of Appeals, wrote in criticism of the exclusionary rule, “the criminal is to go free because the constable has blundered,” he was able to “pack into a simple sentence of eleven words the entire case against the exclusionary rule.”

Next in order of importance is a natural intelligence. On our Court there are occasions when profoundly difficult, technical issues must be resolved. For example, at the end of my service, we had to master the intricacies of DNA evidence. Justices Handler and Pollock devoted months to unraveling the scientific issues. You have to be smart to understand some things.

The next trait on my list is collegiality. The hallmark of the New Jersey Supreme Court — at least for the 15 years in which I knew it — was its willingness to talk its cases through. We called it “wrestling the case to the ground.” It was our custom to debate cases for hours, and sometimes days, until we exhausted every aspect of the analysis. Judges must be willing to participate in that type of discussion for a court to be great. This requires qualities of open-mindedness, a willingness to hear both sides of an argument. The quality of a judge’s interaction with colleagues and his or her patience and evenhandedness will greatly contribute to the work of the court. It is one thing to be firm; it is another to simply be stubborn and heavy-handed.

A judge must be able to express legal principles in clear and forceful language, an attribute described by Gerald Gunther in his biography, Learned Hand: The Man and the Judge. The author portrayed Judge Hand as “the consummate judicial craftsman, if judicial craftsmanship is understood as the ability to construct eloquent, persuasive legal arguments, to draw meaningful and imaginative analogies from related fields of law or human endeavor, to clarify muddled legal doctrines, to give scrupulous attention to the facts, and to master the technical aspects of a case,” Michael J. Gerhardt wrote in a review of the book in 80 Cornell L. Rev. 1627 (1995).

A little bit of self-doubt is also useful. Justice Holmes said, in a speech on Feb. 15, 1913, before the Harvard Law School Association of New York:

We too need education in the obvious — to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law.

Finally, in my view, a good sense of humor is a sign of a great mind. Not only is humor an indicator of intelligence, it can play an important part in the work of a collegial court. One example was our conference discussion of Opinion 688 , a difficult case of attorney-client privilege. Justice Clifford started the discussion. Next in order was Justice Handler. He began, “I agree with everything Bob has said except his conclusion and his reasoning.”

The Court’s survival as an institution depends on public acceptance of its opinions. We have no soldiers or police who can arrest a governor or force a legislator to vote for additional funds for schools. Justice Handler explained our authority this way, in “A Matter of Opinion,” 15 Rutgers L.J. 1 (1983):

In understanding the role and purpose of the judicial opinion, a central theme that we must appreciate is that the judicial power is a vital and sensitive one. Moreover, that power is not truly a popular one. The importance of the judiciary is derived from its constitutional status as an equal branch of government and its function as a supporting and separating arch between the other branches of government. The judiciary must constantly and affirmatively establish in the regular exercise of its power its own legitimacy. That legitimacy must be revealed by the rightness and acceptability of its actions. It must be self-evident.

A public that seeks a court that is truly supreme must search for judges who can make self-evident the legitimacy of the court’s actions. To that end, a governor or judicial selection committee should seek men and women with demonstrated qualities of independence of mind, the courage to sustain that independence, the breadth of experience to have witnessed most of the issues that affect the lives of our citizens, natural intelligence to understand these issues and the acquired skill of being able to explain the reasons for judgment. The Chief Justice must be the nonpareil among members, often recalled in the mold of Arthur T. Vanderbilt or Joseph Weintraub. The Court must respect its leader. He or she must keep the Court on its course. For the Wilentz Court, the distant star toward which we all aimed was public confidence in the judiciary and the legal profession.

When a warm sense of humor and genuine collegiality is added to the mix, a fine court is the result. We shared many family occasions as a court — weddings, birthdays, dinner parties and even gala visits to the New York Athletic Club as guests of Justice Garibaldi, who had helped open it to women. Another memorable occasion was “The Hookers Party.” Justice Handler’s wife, Rose Marie, had invited the justices’ spouses to the family farm to learn how to weave hooked rugs, and after our Court session, we joined the gathering for dinner.

I once said to Justice Pollock, “maybe we are too close to each other to be a good court.” He replied, “Dan, contented cows give the best milk.”

I am convinced that among the diverse people of New Jersey, there are many lawyers and judges who possess these qualities in abundance. A well-stocked judiciary will provide a pool of this talent. I have met so many exemplary lawyers who are discouraged from seeking judicial office by the current selection process. A strong governor has many trump cards to play and need not yield to senatorial courtesy or political considerations. He or she need only seek out the many fine candidates.

— Edited by Pamela Brownstein

The Series


The following is the chapter publication schedule for Justice Daniel J. O’Hern’s book: