Diversity Is Dying In The Judiciary -- I’m Looking At You, New Jersey
It’s time for New Jersey, and numerous other states, to address the diversity crisis in the judiciary system.
Judge David F. Bauman (with Governor Chris Christie)
“We ain’t going nowhere but got suits and cases.” – Kanye West
How does someone become a judge in the United States? The answer varies, but some methods for selecting judges are more effective than others. One thing is certain: diversity in our nation’s judiciary system is withering on the vine.
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In order for the judiciary to function effectively, every American must have the utmost confidence in their courts. Judicial diversity is one way to increase public confidence in the courts, provide decision-making power to formerly disenfranchised populations, and ensure equal justice for all. So why are diversity statistics in our judiciary so abysmal?
Most of the legal disputes adjudicated in America are heard in state courts. In fact, millions of cases pass through state courts every year, which is why it is imperative that the judges handling them are objective and accountable. According to a study by the Center for American Progress, the lack of diversity and the tactics used in judicial campaigns are alarming considering the crucial issues pending in state courts, including voter ID laws, the death penalty, and redistricting maps.
“Judicial selection cannot be conducted in smoke-filled rooms where cronies choose their buddies, or even where there might be an appearance that is happening,” IAALS Executive Director and former Colorado Supreme Court Justice Rebecca Love Kourlis recently stated. “Rather, the process must be merit-based, politically diverse, and above board, which is precisely why we created these Model Code of Conduct recommendations.” But let’s not fool ourselves, even the election process can be infected with racial bias.
This week, I read the op-ed “Another chance to diversify N.J. Supreme Court falls victim to politics,” by Theodore K. Cheng and Jhanice V. Domingo, President and Immediate Past President of the Asian Pacific American Lawyers Association of New Jersey, respectively. Like others before them, they wrote about the nomination of Judge David F. Bauman, who would have been the first-ever Asian Pacific American associate justice of the New Jersey Supreme Court had he been confirmed.
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But Bauman was denied a confirmation hearing twice and his nomination was ultimately abandoned. Merit and diversity were pushed aside in the process of “politics as usual.”
Last week, Carlos M. Bollar, President of the Hispanic Bar Association of New Jersey, helped author a Joint Letter from New Jersey Affinity Bar Associations to Governor Christie and Senator Sweeney, expressing the affinity bar associations’ frustration with the lack of diversity throughout the New Jersey judiciary and the current composition of the New Jersey Supreme Court.
Currently, the New Jersey Supreme Court, like so many state supreme courts, continues to look like your local country club, instead of reflecting the demographics of the state’s general population. In filling the seventh seat — a seat that remained vacant for six years — on New Jersey’s highest court, the governor’s office and senate boasted of their successful bipartisan agreement. But who could claim there was any type of objective good faith and fair dealing in this judicial selection process?
On Wednesday, I had the opportunity to catch up with Jhanice Domingo and Carlos Bollar and chat with them about New Jersey’s state of affairs. Here is an excerpt from our conversation:
Renwei Chung (RC): What can New Jersey do to better address the lack of diversity in its judiciary?
Jhanice V. Domingo (JD): There is a critical need to diversify the New Jersey judiciary, which historically has been non-diverse and unrepresentative of the state’s diverse population. Throughout the history of the New Jersey Supreme Court, there have been only two African-American associate justices, two Hispanic/Latino associate justices, and there has never been an Asian Pacific American associate justice. Out of thirty-four judges in the Appellate Division, twenty-eight are Caucasian, three are African-American, and three are Hispanic/Latino. Conspicuously absent is the representation of Asian Pacific American judges. And, out of approximately 364 Superior Court Judges there are only four Judges of Asian Pacific American descent.
The Governor’s Office, the New Jersey Senate, and the New Jersey State Bar Association must join forces with the state’s specialty bar associations to seriously evaluate the judicial nominations process and to ensure that it provides fair access and opportunities for qualified diverse judicial candidates.
RC: Why is diversity important in the judiciary system?
Carlos M. Bollar (CB): A diverse judiciary leads to an exchange of different ideas and points of view and helps combat unintended and institutional bias. Diversity fosters a more informed deliberative process. A judiciary reflective of the citizenry it represents enhances the legitimacy of the judicial system in the eyes of a diverse public and can help restore the public faith in the legal system. A demographically imbalanced legal system creates a risk that the public could lose confidence in judges to treat them fairly and impartially. A diverse judiciary helps to counter perceptions of systemic bias that currently exist.
RC: What would you like to see happen regarding these issues in the near future?
JD: “Politics as usual” must change, and we must hold accountable those who fail to act in the best interests of New Jersey’s diverse population. “Business as usual” should mean efforts to make diversity a priority. It is imperative that diversity is prioritized by New Jersey’s elected officials, who have been elected in office to serve the interests of the entirety of the sttate’s diverse citizenry. Toward this end, there must be transparency regarding judicial vacancies throughout the state, the NJ State Bar Association’s Judicial and Prosecutorial Appointments Committee must include delegates from specialty bar associations, and diverse judicial candidates must be given meaningful consideration for judicial appointments.
CB: I would like to see all the stakeholders come together for a continuing dialogue on this issue, the Governor’s office, the New Jersey Senate, the affinity bar associations and the New Jersey State Bar Association. There should be a task force or working group comprised of these stakeholders to analyze the current procedure for judicial appointments and make recommendations to improve the process of bringing a greater number of qualified, diverse attorneys to the judiciary. I would also like to see the affinity bar associations of New Jersey continue to work together towards common purposes as we have done in the past year.
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It may be argued what method is the best to achieve judicial diversity, but one thing is clear – the state supreme court appointment method is the most offensive to minority judges. Whether by institutional or political circumstances, the state supreme court appointment method is used less than one percent of the time to select minority judges for state courts.
Overall, too few states have systematic recruitment efforts to attract diverse judicial applicants. Today, white males are over-represented on state appellate benches by a margin of nearly two to one. I recently heard someone say, “if Marvel makes Thor 3, it will have made ten movies headlined by blonde white men named Chris before it makes one movie headlined by someone who isn’t even white.” #whitewashedOUT
I can only marvel at what the ratio of judicial appointments for white males named Chris to people of color will be over the coming year.
Our society is not colorblind. Judges are not colorblind. To believe we are colorblind is to be naive; to believe the justice system is colorblind is to be clueless. Judicial diversity is the best way to increase public confidence in the courts, provide decision-making power to formerly disenfranchised populations, and ensure equal justice for all.
Judicial diversity is essential to helping our judiciary deliver equal justice, restoring the public’s faith in the legal system, and countering perceptions of systemic bias that currently exist. It’s time for New Jersey, and numerous other states, to address the diversity crisis in the judiciary system. It’s not only frustrating for qualified minority candidates, it is offensive.
(Flip to the next page to read the Joint Letter from New Jersey Affinity Bar Associations to Governor Christie and Senator Sweeney, or access it via the link below.)
Joint Letter from New Jersey Affinity Bar Associations to Governor Christie and Senator Sweeney [Hispanic Bar Association of New Jersey]
Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.
