To the Editor:
Governor Christie recently nominated two men to fill vacancies on the Supreme Court. Neither candidate is African-American nor Latino, which are the state’s two largest minority groups. This lack of diversity has spawned public condemnation from many progressive groups.
The Garden State Bar Association is one of the oldest specialty bar organizations in New Jersey and is comprised primarily of African-American attorneys and jurists. The GSBA’s opposition to the current nominees based solely upon their lack of diversity is plausibly predicted. After all, opposition by the GSBA is reasonable under the circumstances since, if the current candidates are confirmed, the Supreme Court would be without an African-American for at least the next decade.
Despite that fact, the GSBA refuses to support or reject a candidate based on race alone. While having an African-American justice would at least in some sense “feel” good, the conversation must be more nuanced than playing the trumpet of diversity and having ethnic bar associations complain or endorse candidates based on skin color. Implicit in criticizing the governor’s current nominations solely on the basis of race is a tacit demand for a “black seat.” Such a rubric is as limiting as it is progressive. Under such a scheme, the “black seat” would perpetually be vacated and occupied by a single African-American but collaterally, no African-American, regardless of how qualified, would be permitted to fill any vacancy in the other six seats. This result is not optimum — nor prudent.
Ensuring that the court at all times contains a qualified African-American jurist, however, will go a long way towards sustaining a public perception of inclusion, and public perception is essential. But equally important, time has long passed for the unsophisticated and indolent calculation of what would be an “acceptable” number of blacks, Latinos, Asians, men or women on the court. Many chide “diversity” as among the most laudable of goals, but most fail to grasp the true benefit of it —or, more appropriately, the high cost of its absence. “Diversity,” after all, is defined as “being composed of different elements.” Race, gender and ethnicity provide common forms of diversity. However, those considerations are but the tip of a vast iceberg.
Traditionally, the New Jersey Supreme Court has maintained a balance whereby the sitting governor arranged appointments so that his or her party enjoys a one-seat advantage. Since the modern New Jersey Constitution was adopted in 1947, it is widely accepted that the court should always remain politically balanced, with at least three members of each party occupying the seats. In addition to political balance, there has been an African-American on the court from 1994 to 2010 and a Latino from 2004 to 2011. Thus, the court has in recent years been both politically and racially diverse, giving the strong impression of an independent and impartial court.
Governor Christie apparently seeks to challenge both notions. Interestingly, the governor’s reported motivation is a concern with the court’s perceived history of liberal activism. In other words, the governor’s perception is that the court has shown signs of being doctrinally and ideologically monolithic to the left of his own beliefs, despite that the court has containedconsiderably more racial and partisan diversity than what is now being proposed. The unfortunate and probable consequence of the governor’s view is that Supreme Court decisions will be challenged, repeatedly, whenever new Justices are seated. There are rumblings that shortly after confirmations, we will see Abbott XXII and perhaps additional visits to the Mount Laurel doctrine. More concerning than yet more arguments on the same topics is that if the governor’s apparent shift in traditional methods of filling Supreme Court seats becomes the new ritual, each future governor will endeavor to change the make-up of the court so that it shifts to meet his or her legal ideology followed by reconsideration of old issues. The result could mean that one day we will eagerly await the Supreme Court’s highly anticipated Abbott LV opinion and Mount Laurel XXXIV.
At the end of the day, the public’s perception of judicial fairness, independence and bipartisanship is critical to garnering respect for decisions emanating from the court. Further, the term “public” is not limited to layman on the street. It indeed includes those placed in charge of running the government. Making sure there is diversity on the court could help: having an African-American, a Latino or more Democrats, for example. That, of course, does not end the discussion, and does not result in all opinions rendered by such a diverse panel being beyond reproach. However, a move away from diversity can all but ensure that the resulting distrust of whatever opinions rendered will subject the court to perpetual challenge and re-challenge of socially relevant issues after its membership is mantled and dismantled each time a new administration takes control. Present and future governors must be mindful of this unfortunate possibility and endeavor to always seat a cadre of men and women that will make each member of the public secure in the belief that the state’s highest court is fair, balanced, independent and yes — diverse.
Garden State Bar Association