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Chief Justice Stuart Rabner. (Photo: Kevin Sanders for New Jersey Globe)

N.J. Judiciary lacks diversity at highest levels, where 80% of appellate court judges are white

Chief Justice Stuart Rabner pledges to enhance diversity ‘from the hiring of law clerks to appointments at the highest level’

By David Wildstein, November 15 2021 12:01 am

The upcoming retirement of one of the state’s highest-ranking Black jurists puts Chief Justice Stuart Rabner’s record of promoting mostly white judges on display at a time when Black and Hispanic leaders are upset that the state’s top three posts – Governor, Senate President and Assembly Speaker – are held by white men.

Judge Glenn A. Grant, the acting administrative director of the courts – some say he is the second most powerful person in the New Jersey courts — is set to retire on December 29.  The decision on who will fill the post – essentially the chief operating officer of the New Jersey judiciary – belongs entirely to Rabner.

Rabner, who is white, tenured, and hugely respected by leaders of minority groups, runs the third separate but equal branch of state government.   But unlike governors and legislators, the chief justice has unilateral authority to elevate or demote Superior Court Judges without any oversight.

His record of promoting judges of color is spotty, with white judges occupying most of New Jersey’s top judicial posts.

Of the fifteen Superior Court vicinages, eleven of the assignment judges (73%) are white.  That number increased by one in August when Rabner nominated Lisa Miralles Walsh, a Latina, as the assignment judge in Union County.

Five of the seven presiding judges of the Appellate Division (71%) are white – those posts are seniority-based — and 80% of the total number judges assigned to the appellate court – 24 of 30 – are white.

According to statistics released by the courts, just 81 out of 398 Superior Court judges (20%) are considered diverse and just 36% are women – 145 of the 398 judges.

State Sen. Ronald Rice (D-Newark), the longest-serving Black lawmaker in New Jersey history, said he’s disturbed by the racial imbalance of the judiciary.

“There are some unintended biases.  There is still some racism there.  It’s still an old-boys network,” Rice told the New Jersey Globe.  “It’s not just Rabner.  It’s reflective of the white establishment.”

Rice said that part of the problem is the lack of minority candidates being appointed to the Superior Court.

“I’m disappointed that the legislature continues to hold up judges,” he said.  “That’s on the governor and (Senate Judiciary Committee Chairman Nicholas) Scutari.  “I’m concerned.”

Defenders of Rabner blame the lack of diversity at the highest levels of the New Jersey Courts on senators – and county chairs — who recommend white judges, and on governors who nominate them.

“The chief makes the decision, of course, but it’s not entirely his fault,” a retired judge told the New Jersey Globe.  “He’s dealing with the hand he was dealt.”

But Rabner has also opted for mostly white candidates for other posts.

On the Advisory Committee on Judicial Conduct, which investigates allegations of ethical improprieties made against judges, seven of the eight members are white.

Rabner has twice chosen white men to serve as tiebreakers on the Legislative Apportionment Commission, an appointment that was solely his own.   The full court selected the first Black tiebreaker on the panel that will draw congressional districts, former Supreme Court Justice John Wallace, a Democrat, but in that case, they were limited to only the two candidates put forth by the two major political parties.

Still, the New Jersey Supreme Court under Rabner has taken on a record number of cases that impact people of color and marginalized groups.  Last week, he led a two-day panel discussion seeking ways of preventing bias in the selection of juries.

And Rabner has promoted a record number of women to serve in the appellate division and as assignment judges.  Twelve of the 30 appellate judges – and one of the eight presiding judges — are women.    Eight of the state’s 15 assignment judges are women.

“Our state is best served by the appointment of a diverse group of talented judges.  The same is true for the leadership of the Judiciary, where women and minority judges comprise a majority of the State’s fifteen assignment judges and reflect the excellence of the Judiciary,” Rabner told the New Jersey Globe.  “We will continue to make every effort to enhance diversity throughout the Judiciary, from the hiring of law clerks to appointments at the highest level.”

Rice said that the Black Bar Association, the Association of Black Women Lawyers, and the Latino and Asian Bar Associations have stepped up their process of recruiting and recommending people of color to serve as judges.

“The problem is elected officials want to patronize them,” Rice explained, noting that many of those candidates just get “lip service” when it comes to their nominations.

Former Assemblyman Michael Patrick Carroll (R-Morris Township), who had been one of the legislature’s most conservative members during the 24 years he served, defended Rabner.

“He deeply cares about this court,” Carroll said.  “One shouldn’t care about the color of our judges.  We should find the best legal minds to serve in the appellate division.  If he has not appointed a proportional number of African Americans to the bench, it appears the candidates are not up to snuff.”

How the chief justice became so powerful

The constitutional power of the chief justice of the New Jersey Supreme Court stems from an old-fashioned, Jersey-style political deal.

Arthur Vanderbilt, the Essex County Republican leader, had been feuding with the state’s GOP governor, Alfred Driscoll, just as delegates were preparing to approve a new State Constitution in 1947.  Driscoll wanted a powerful executive branch, and Vanderbilt wanted to be chief justice.

As a result, Essex supported Driscoll’s push for a constitutionally strong governor, and in turn, Vanderbilt, a judicial reform advocate, wrote the job description of the chief justice with himself in mind.   After the new State Constitution was ratified, Driscoll named Vanderbilt as the first chief justice of the newly-constituted top court.

In New Jersey, governors nominate Supreme and Superior Court judges, and the State Senate confirms them.  Once a Superior Court Judge is sworn in, the State Constitution gives the chief justice the singular authority to make judicial assignments.  The entire appellate division is picked by the chief justice – something Vanderbilt had fought for.

Carroll said that he would support a constitutional amendment to take the appointment of appellate court judges away from the chief justice and give it to the governor, with the advice and consent of the Senate.  That’s the system used at the federal level.

“The problem is the unconstrained power,” Carroll said.  “If you go out there looking for ideological soulmates, that could be a problem.  When you start putting identity politics in there, that could be a poison on the judicial system.”

Some judiciary observers, including Carroll, think New Jersey is missing out on a potential judges who don’t want to handle mundane landlord-tenant disputes as they work their way up the judicial ladder but might accept a nomination to go directly to the appellate court.

“We don’t not choose our judges on the appellate division by their scholarship,” Carroll said.  “Perhaps we should.”

Rice says that Republican senators deserve some of the blame for the lack of diversity on the bench.

“Republicans barely ever submit Black or Latino names,” he said.

Carroll said the issue has “nothing to do with the chief justice now.”

“Why should you care about the skin color of a judge?” Carroll asked.  “I wouldn’t mind a (U.S.) Supreme Court with nine Clarence Thomas’.”

The current seven-member New Jersey Supreme Court has five white members, one Hispanic – Faustino Fernandez-Vina – and one Black, Fabiana Pierre-Louis, who was nominated last year by Gov. Phil Murphy.   That’s not on Rabner, who has no role in the selection

From 2010 to 2020, the New Jersey Supreme Court had no Black justices.  That happened after Republican Gov. Chris Christie refused to renominate Justice John E. Wallace, Jr. to a tenured term.

The U.S. District Court in New Jersey is more diverse, where 8 of the 23 sitting judges are people of color.  President Joe Biden has nominated six new federal judges – four have been confirmed – and none are white men.

The courts used to publish a New Jersey Directory of Minority Judges twice a year but has stopped under Rabner.

In 2008, one year after Rabner was sworn in as chief justice, New Jersey had six appellate court judges of color – the same number as in 2021 – one Hispanic Appellate Division presiding judge, and two Black assignment judges.

The relatively low census of Blacks, Hispanics and Asians holding top leadership positions in the state’s judicial system means that all eyes will be on Rabner as he considers a replacement for Grant.

Grant began his public service career as an assistant corporation counsel in Newark in 1979 and became Mayor Sharpe James’ top lawyer in 1986.  He later served as Newark business administrator under James before his nomination to the Superior Court in 1998.

Rice wants Rabner to replace Grant with another person of color.

“There are more than enough qualified people of color,” said Rice.  “He needs pressure to do so.”

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