Diverting Bench Diversity

Zero to tokenism marks many courthouses

By Dana E. Sullivan

New Jersey's governors can declare they want judges who reflect the diverse makeup of the state's population, but wishes don't change the fact there are many courthouses where defendants and litigants won't see a black, Hispanic or Asian-American face looking down from the bench. Nearly one-third of the state's courthouses have not a single minority judge. Another third have just one.

Women fare better - but not by much. In nearly half the state's courthouses there are no more than two women on the trial bench. And that includes several counties with just one or none. An analysis of statistics from each courthouse reveals that among the state's 21 counties and their separate court operations, there are glaring pockets where bench diversity either is non-existent or borders on tokenism. For years, published accounts about diversity on New Jersey's bench have keyed in on the overall numbers of minority and female judges, underscoring what has long been an imbalance.

But a new examination by New Jersey Lawyer from a different - and perhaps more-relevant - perspective has revealed that in many counties the lack of bench diversity goes deeper than most would have expected in a progressive Northeast state. Some maintain the diversity drought is not intentional; there simply are insufficient qualified minorities and women willing to make the judiciary a career.

Leaders of minority organizations bluntly label such conclusions hogwash. "That doesn't hold water anymore," said Eugene Huang, president of the Asian Pacific American Lawyers Association. "We have people at the top of their profession." "That's a cop-out," said Michael A. Rambert, president of the Garden State Bar Association, which advocates for black attorneys. Not only are there ample numbers of qualified black lawyers who would love to be judges, he said, but the potential pool of candidates is large enough that some would be competing with each other - if given the opportunity.

And Ivette R. Alvarez, incoming president of the Hispanic Bar Association of New Jersey, said the HBA is painfully aware of the disparity of minority representation in many counties. "We feel there's progress to be made all over the state of New Jersey," she asserted, noting the HBA has candidates at the ready. Even in counties where there are relatively significant numbers of minority trial judges, those courthouses still fall far short of reflecting the racial composition of their region.

Minority judges statewide comprise 13 percent of the trial bench - a ratio boosted by counties like Essex, Hudson and Camden, which alone account for 28 of the 50 minority trial judges in the 21 counties. Courthouses without a single black, Hispanic or Asian-American judge aren't just in small or rural counties like Sussex, Warren, Salem and Hunterdon, but also suburban counties like Morris and Somerset. Further, Atlantic, Burlington, Cape May, Cumberland, Gloucester, Monmouth and Ocean each have only one minority judge.

Female judges

Women have fared better overall, but there still are pockets where woman judges are scarce. There are none in Hunterdon, Salem and Sussex counties, and only one each in Cape May, Cumberland and Warren counties. Passaic has two women among 24 judges; Monmouth, two of 27; and Ocean and Morris, two of 17. Only Gloucester and Somerset counties, with 45 percent female judges each, approach a 50-50 split.

While there are 50 percent more minority and women judges as there were in the early 1990s, progress has been painfully slow and the curve seems to have hit a plateau, despite years of bar organizations, judicial officials and sometimes governors and legislators publicly rallying for diversity in the courts. There has been one overriding constant throughout: The actual numbers do not match the rhetoric. Gov. Jon S. Corzine has just begun naming his choices, but unless he accelerates the rate of change that has existed the past dozen years - about 0.5 percent a year for minorities, 1 percent for women - he'll just be treading water.

Since 1994, when there were 7 percent minority judges, there have been 286 appointments to the trial bench, of whom 15 percent have been minorities. And 74 women were appointed to the trial bench during that same time, boosting their ratio from 15 percent to 26 percent. "We need to do better than that," Corzine said in June about those statistics. But Corzine has nominated only four Superior Court trial judges in nine months - three men and one woman, all white.

With 30 more openings and many more to come the next three years, Corzine has an opportunity to elevate the numbers. Of course, it's not entirely up to him. The system for choosing judges - to the extent it's a system - is traditionally rooted in county politics, where attorneys who are potential candidates, through political activity and election campaign contributions, make themselves known to party leaders and ultimately to state senators and other local political power brokers who present their favorites for bench appointments to the governor. Indeed, a judgeship is one of the most-coveted political plums in New Jersey.

It's long been a staple of the patronage system, though it's not generally talked about publicly in that vein. Any senator from a county can block a nomination through senatorial courtesy, and while that veto is lightly used, just the fact that it exists means there must be unanimity between the county's senators and the governor - or at least some horse trading. No one in recent years has charged that there's a willful bias in this process against any group, but each senator has the power to insist on his or her choice, to the possible exclusion of a minority or female.

It may boil down to a choice between giving diversity a boost or taking care of someone who helped you get elected.

Bergen impasse

Bergen County is an example of how an impasse can develop. The state's most-populated county has two minority and six female judges among 33. The diversity disparity there has even been worse. There are six vacancies and those positions previously were held by five men and one woman - all white. That could present the Corzine administration with an opportunity to correct the balance, but there are five senators representing parts of Bergen and they must agree among themselves before the governor gets a single name. "We have a very large void in terms of women and minorities," said Sen. Loretta Weinberg (D-Bergen). She said eventually there will be a package of candidates that will include women and minorities. The fact that some of the potential candidates are minorities and women isn't the problem, she said, but rather some senators have candidates they prefer over others.

That's the political tangle that ensnares minorities and women. And it isn't only senators wanting to reward a qualified lawyer who worked or contributed to their election campaign. Sometimes the system is influenced by county political bosses or power brokers with political debts to pay, ostensibly via the bench recommendations of their senators. Sen. John H. Adler (D-Camden), chairman of the Senate Judiciary Committee, noted some governors "have tried to tame the beast of senatorial courtesy."

That beast, though, has prevailed within both parties in the private caucuses of senators who over the years voted overwhelmingly not to relinquish that bargaining power in dealing with governors when it comes to appointing judges, prosecutors and others.

Get involved

Cynthia M. Jacob of Fisher & Phillips in Somerset pointed out that female representation on the bench has improved over the years, and lately more assignment, presiding and chancery judges are women. But Jacob, a former president of the New Jersey State Bar Association, said that in general there are two basic reasons women are underrepresented: . There are fewer women actively practicing than admitted, whether because of motherhood or alternative careers. There are fewer women involved in politics and therefore they're handicapped when seeking judgeships.

"There's no question political activity plays a major role," she said. Kirsten Scheurer Branigan, president of the New Jersey Women Lawyers Association, echoed Jacob's comments about getting involved in political activity, but noted that might be easier said than done. "A lot of women shy away from politics," she said. She met with Stuart J. Rabner when he was chief counsel to Corzine and passed along résumés of several women she believes would make good judges. She's optimistic some will get active consideration. She noted Rabner and his staff suggested candidates get to know the principal political figures in their county. Alvarez of the Hispanic Bar Association also underscores the importance of that to get to the bench. As she put it, "The reality is you have to be politically involved."

Ironically, that has been the reality for so long that one seems to question anymore the logic of why a would-be judge has to be a political insider. What often gets lost in the give and take over whether there are sufficient numbers of qualified minorities and women available to be tapped for judgeships is the reality that a large pool isn't necessary. There generally are only some 30 vacancies a year in the trial courts statewide.

Qualified candidates

While Corzine and sympathetic state senators say they're struggling to keep their publicly stated commitments to diversity, leaders of minority attorney groups say any such shortfall isn't for want of qualified candidates.

At a recent New Jersey State Bar Association seminar aimed at giving women and minority attorneys a leg up on becoming judges, Adler, chairman of the Senate Judiciary Committee, took a shot at Morris County for having no minority judges. "Morris County has a shameful history on diversity," he said. Asked to respond, Morris County's senior senator, Republican Robert J. Martin, said one reason simply is a lack of candidates. Martin and the Morris County Bar Association have over the years and continue to experiment with more-progressive recruitment methods for judges, but it's been common for politicians to say their chief problem in recruiting minorities and women is that few of them are willing to forgo relatively lucrative careers for $141,000-a-year judgeship.

Rambert, the Garden State Bar Association president, brushes such talk aside. "I could almost bet they wouldn't be taking that big a pay cut," he said. Rambert said his group for years has collected résumés, carefully screened potential candidates and forwarded those names to governors and senators.

Practically buried in the discussion of diversity is the representation of the Asian-American community which, despite having 6 percent of the state's population - beyond Hawaii and California that's the nation's third-highest proportion - has only three judges. Huang, president of the Asian Pacific American Lawyers Association, agreed with Rambert that politicians cannot legitimately claim there aren't enough qualified candidates. Essentially, the minority organizations say just ask and they'll deliver.