Christie to Latino Attorneys: Wait 10 Years to Sit on the NJ Supreme Court
America knows Gov. Chris Christie by now. They heard his name in the swirl of presidential hopefuls before the primaries got serious. They saw him stumping for Mitt Romney. They revel or wince at his persona. They admire him for putting his state first when the devastation of Hurricane Sandy required bipartisan leadership.
Latinos in New Jersey also know the governor by now. They, too, admire his ability to rise over the hyper-partisanship of today's politics and secure much-needed federal disaster relief from the Obama administration. Some of them would actually welcome and support a presidential run from the governor at some point. But for many of the state's largest minority, the governor is reverting to form. His record of nominees to the state's highest court continues to ignore New Jersey's Latino community. His recent announcement heralding two additional names makes it five total nominees from the governor for three vacancies on the New Jersey Supreme Court. Not one Latino nominee among them. One vacancy stemmed from the departure of the State's first and only Hispanic jurist. At this rate Christie is telling Latinos -- now 18 percent of the population and swelling -- wait 10 more years when the next member reaches retirement age before you get a whiff of a Supreme Court Justice.
Sounds like the guy who wants to be president better brush up on his Spanish. Sounds like he better re-read the Election Day results of last November.
New Jersey's Latino population has had a long history of contributions to the state and an activism on the political, economic or civil rights arenas that is exemplary. It is a diverse Latino community as well: Puerto Ricans are the clear plurality with close to 30 percent of the Latino population; Mexicans, at 13 percent, have just edged out Dominicans in the last Census; and Cubans are just shy of 6 percent. Just a cursory review of the 40-year docket of LatinoJustice PRLDEF evidences a community that is more than ready to assert its rights in court, be it to demand sanitary housing for migrant farmworkers in South Jersey, to establishing the rights of voters to be free from discriminatory Election Day challenges, and to stopping anti-immigrant ordinances that target Latino day laborers.
Rutgers professor Robert Montemayor has done an excellent job of extolling what he terms Latino "indiscriminate spending," or what marketers call Latino purchasing power. Power is only power if it is leveraged, he notes adroitly. Nonetheless, the numbers are impressive. Nationally the Latino market spends $1 trillion. And in New Jersey Latinos spend an incredible $55 billion dollars. But whether Gov. Christie is keeping tab on these points he must have noted the shifts in the political winds in New Jersey. Postings on the Latino Decisions blog document that the share of the Latino electorate in New Jersey grew by 82 percent since 2000 and that in this decidedly pro-Obama state, Latinos actually voted in higher numbers for President Obama than did Latinos nationally, 77 percent compared to 75 percent. Simultaneously, Senator Robert Menendez (D) easily won reelection in the Garden State joining three other Latinos in the U.S. Senate where he has championed Latino causes for years.
And yet, for Latino attorneys and the communities they represent, it appears that the governor did not get this memo. Actually, with a post-Hurricane Sandy approval rating of 77 percent overall, and 67 percent among Democrats, could it be that the governor doesn't care because he's looking elsewhere?
Diversity in all aspects of government life is important and more so as the census projects that in a generation or two, our country will be composed of pluralities of our rich racial and ethnic tapestry, and Latinos would double in population during this time. But what many governments fail to see is that the failure of diversity within judicial ranks is especially pernicious because it feeds a cynicism that may be unwarranted. The bulk of judges apply the law in a fair manner, but perception here is key.
In the first instance, diversity promotes confidence in the legitimacy of the court system. Confidence can only erode when Latinos are subject to arbitrary & discriminatory treatment by law enforcement. Unquestionably, the judiciary is an interdependent actor in the larger scheme of law enforcement: when Latinos distrust policing decisions it informs their view of the judiciary; when Latinos question prosecutorial discretion, it informs their view of the judiciary; when Latinos confront barriers to access to the courts, based on language or economic status, it informs their view of the judiciary. Law enforcement excesses targeting New Jersey's Latinos are nothing new. The 1974 Newark riots coming just seven years after the well-publicized 1967 riots, were all about police abuse in Newark's Puerto Rican neighborhoods. The scandal of racial profiling on the State's highways by State Troopers targeted black and Latino motorists. Near the end of the Jon Corzine administration his Attorney General authorized a new protocol for interactions with immigrant communities that only exacerbated the deportations of Latinos for mere traffic and low-level criminal violations. The National Coalition of Latino Officers, headquarted in New Jersey, notes that there are multiple towns in Jersey that are 30% Latino that have yet to hire a Latino police officer. In short, the implementation of criminal justice has a long way to go to erase these errors.
"Courts are the most visible part of our legal system," notes the New Jersey judiciary on its website. And its volume of work bears this out with over seven million new cases filed per year. Unfortunately, with a dearth of Latino judges in the State court system, Latinos are rendered nearly invisible in this most visible of government branches.
The New Jersey Administrative Office of the Courts reports that in 2012 there are 24 judges of Hispanic origin in the State courts, or 5.8% of the total of 413 judgeships. There are an additional 530 municipal judgeships in New Jersey but no demographic data is available for that sector of the judiciary at this time. Nonetheless, the more common path for a sitting jurist to be appointed to the New Jersey Supreme Court is by sitting in the State court system, not the decentralized municipal court system.
The dearth of Latino attorneys on the bench is also exacerbated by the problems in the pipeline to law school. The Law School Admissions Council has reported significant drops in persons taking the LSAT - around 16% average drop from last June, October and December. Law school enrollment, for the last 8 years, is down in Puerto Rican and Mexican American communities - the two largest Latino subgroups in the country, and in New Jersey as well. And this despite the fact that the number of seats in accredited law schools has increased during the same period.
There are 41,000 attorneys in the State according to the American Bar Association which also reports that nationwide Latinos compose only 3.4% of the 1.2 million licensed attorneys. Undoubtedly the proportion of Latino attorneys is far less than their share of the State's population. Data on the approximate number of Latino attorneys is not easy to discern and the Administrative Office of the Courts has not conducted its own census of New Jersey attorneys since 1985. Applying the national average to the State results in an estimate of 1,400 Latino attorneys, much less than the proportion of all Latinos in New Jersey but a closer barometer of the relevant labor pool. All of this may resonate if this were a court of law in an employment discrimination case. But it is not. Courts are the public's gateway to the legal system and the rule of law. Demanding diversity on the bench can only enhance the rule of law. Regarding the New Jersey Supreme Court that call was recently made by both the Latino Action Network and by the Hispanic Bar Association of New Jersey. The access sought by those calls is not for diversity within the Governor's inner circle or even within his Cabinet. Instead, it concerns the face of the judiciary -the most "visible" part of the State's legal system. What does it say to Latinos, nay to all of New Jersey, when Christie effectively says that maybe, maybe if Latinos are lucky (!) in ten years the Supreme Court would be open to a Latino jurist?
Across the river in New York, the importance of the relationship between diversity and public confidence in the judiciary has been well-documented. In 2003 in a report of the Commission to Promote Public Confidence in Judicial Elections, registered voters believed that judicial treatment depended on "race, ethnicity, gender, wealth and language skills." Further, "[m]any believe that poor people, some racial minorities and non-English speaking litigants receive worse treatment by judges." This sentiment is heightened among Latino and African American populations. Specifically, 56% of Latinos believe that Latinos receive worse treatment than others in the courts. A smaller percentage of whites, only 33%, felt the same. Seventy percent of Latinos believed that non-English speakers were not treated as well as others, compared with 39% of whites. Sixty-seven percent of Latino voters believed that poor people are not treated as well as others, compared with 46% of whites expressing the same sentiment. A subsequent poll in 2007 in New York State by the Center for Court Innovation reflected some improvement among these indicators, though gaps still remain between the perception of Latinos and whites in New York. In general these data confirm the principle that an increase in diversity leads to greater confidence in the courts, particularly in minority populations.
Recent developments in the processes used in New York to fill current vacancies in its own highest court, the Court of Appeals, are also illustrative of how Governor Christie approaches these decisions. New York's state judiciary is roughly three times the size of New Jersey's and many of the judgeships are filled by voters in judicial elections. Unlike Governor Christie, Governor Andrew Cuomo does not execute his imprint on the judiciary by writing on a blank slate. The Commission on Judicial Nomination vets potential candidates to the Court of Appeals and presents names from which the Governor must select one as his nominee that is then given to the Senate for advice and consent. This year the retirement of the Hon. Carmen Ciparick, the first and only Latina or Latino to serve on New York's highest court, resulted in a panel recommendation of seven attorneys to replace her. Three of the seven are Hispanic: Rolando Acosta, Jenny Rivera, and Margarita Rosa. Of those three, two of them were former staff attorneys at the organization I have the honor of leading, LatinoJustice PRLDEF. Of the three, two are Latinas, two are Puerto Rican and one is Dominican. One of the three is a sitting appellate court judge, one is a law professor, one heads a major social service organization serving the poor. It is now up to Governor Cuomo to push one name among the seven and forward it to the Senate.
In New Jersey, Governor Christie had five attempts to fill vacancies on the Supreme Court, two of which were occasioned by the departure of the Supreme Court's only African-American jurist, John Wallace, and another by its only Latino jurist, Roberto Rivera Soto. Of the five nominees, one was African-American, two were Asian-American. None were Latino. All of this was part of the Governor's larger plan to change the Supreme Court as we know it. For Christie, the Supreme Court had gone too far afield in its rulings on public school funding and affordable housing. Guess which populations in the State stand most to gain by fairer policies regarding school funding and affordable housing? Right: African-Americans and Latinos. Indeed, right now Christie is challenging the validity of the 1975 Mt. Laurel case which outlawed exclusionary zoning practices (minimum lot sizes, prohibitions on multiple dwellings, etc.) as unconstitutional and created a statewide Fair Share requirement for affordable housing. There's no question that exclusionary zoning causes racial and economic segregation, and that the Fair Share requirement lessens it, as the Latino Action Network wrote in an amicus brief. More than 60,000 affordable units have been built since the Mt. Laurel decision benefitting over 160,000 tenants. In short, the housing segregation of Latinos is higher in New Jersey than in the U.S. as a whole. But Christie's view of the role of the Supreme Court would change all that, at the risk of challenging the Court's independence.
In 2010, the Governor's refusal to support Justice Wallace's reappointment resulted in a major standoff with the Democrat controlled State Senate that lasted over a year and resulted in a Supreme Court with less than its full complement of jurists. The departure of Justice Rivera Soto was a lot more complicated and with a healthy dose of drama. The Justice engaged in a quixotic work stoppage and refused to deliberate upon cases in a way that could have easily been interpreted as supporting Christie's position to replace Wallace leading to equally confusing and unwarranted calls for his impeachment, and eventually his decision not to seek reappointment. If Christie's current nominees are approved it will be the first time since 1994 that the New Jersey Supreme Court will not have a Latino or African-American jurist -and for the next ten years as well. If his current nominees pass muster it would result in a historic first of an Asian-American on the court. Admittedly laudable, but with three vacancies, one created by the departure of the first-ever Latino Justice, the Governor had his chances to further diversify the court. Latino attorneys are still waiting.
And it's not as if his broader record of appointments of Latinos was markedly stellar. He pushed the appointment of a Latina judge to the Hudson County Superior Court. In the strongest Latino county in the State, more than 40% Latino, that's a no-brainer. Most recently he is pushing the nomination of a Latino attorney to the Rutgers University Board of Trustees to the point of bypassing the Senate entirely and making a direct appointment. The nomination was stalled -not an infrequent occurrence given his bombastic style of management. But in this case his nominee to Rutgers will be the only Trustee with decidedly deep roots in New Jersey's premier state university. As a graduate, former professor and father of two Rutgers alumni, Mr. Martin Pérez appears more than well qualified for the position. And yet, one or two gubernatorial appointments fails to cover a dismal record of appointments overall and there are no Latinos in senior leadership positions anywhere in Trenton. At the start of his administration, the press noted how most of his Cabinet appointments were white men. The Governor responded that that diversity is one factor but he prefaced that by saying he won't take a "Noah's ark" approach to his appointments. This speaks volumes.
Diversity in America's courts reflects the values of diversity in every other aspect of American life from our college campuses to our Board rooms. These values speak to inclusion, diversity of perspective, and diversity of experience. The tenure of Justice Thurgood Marshall on the U.S. Supreme Court was highlighted by the views of his colleagues on the bench, most notably Justice Sandra Day O'Connor that spoke to the perspective he brought to the issues before the Court - perspectives gleaned from lived experiences. Justice O'Connor's observations bring to mind now Justice Sonia Sotomayor's tellingly profound observation that at times case adjudications would benefit from the perspective of a "wise Latina." Thus even within the narrow confines of evidence and judicial decision-making, there is room for diversity of thought in the court's deliberation.
Some of these perspectives have been noted by Professors Kevin Johnson and Luis Fuentes-Rohwer in a law review article on judicial diversity published in 2004. For example a jurist of Mexican ancestry may appreciate that there is no readily definable "Mexican appearance." This view differs from the 1975 ruling in United States v. Brignoni-Ponce where the United States Supreme Court approved the reliance on "Mexican appearance" in immigration enforcement and stated that it may be employed with other factors to justify the questioning of a person near the border about his or her immigration status. Thus the professors noted, "an awareness of the stereotypes and their impacts in relegating Latina/o citizens to second class citizenship might influence a judge's approach to a variety of areas of law, including the immigration and anti-discrimination laws."
Contrast the stereotype of "Mexican appearance" with what happened to a prominent Latina attorney in Essex County Superior Court in Newark just four years ago. Ivette Alvarez, former President of the Hispanic Bar Association and one of the state's premier family law practitioners was called an "illegal alien" in open court by a sitting New Jersey judge, James Convery. Courageously, she lodged a complaint with the courts and its committee on judicial conduct eventually reprimanded the judge. The Hispanic Bar Association said at the time: "Simply put, in today's climate in New Jersey where anti-immigrant hysteria in increasingly in vogue, accusing Latino members of the Bar of being "illegal aliens" is code for engaging in discriminatory and stereotypical name-calling that isolates Latino attorneys, questions their legitimacy and competence, and perpetuates the notion of "other" that the HBA has steadfastly sought to eliminate." Convery quietly retired from the bench. And yet the concern of the Latino bar went beyond Ms. Alvarez who expertly knew how to navigate the system and expose this abuse. If an attorney of her caliber was insulted in this manner, what of less experienced Latino attorneys or Latino litigants who are silenced for fear of retaliation, the Association asked.
After such a brazen display of animus, even if you accept that it was an isolated occurrence, are we still seriously debating the benefits of diversity on the bench? Really, Governor Christie? The bottom line here is that diversity matters -and it matters in all walks of life including at the highest levels of the judiciary.
It is time New Jersey recognizes that as well.
President & General Counsel
19 December 2012