"Diversity" and its definition at issue in Christie's picks for high court

New Jersey Democrats have long argued that they would approve only "diverse" nominees to the state Supreme Court. But now, as liberal opposition builds against Gov. Christie's most recent picks, the definition of diverse appears to be changing.

One of the two nominees, Monmouth County Superior Court Judge David Bauman, was born in Japan to a Japanese mother and would be the first Asian American on the high court.

Yet the Legislature's black caucus, the state Latino Action Network, and a broad coalition of more than 50 groups, including teachers' unions and Planned Parenthood, are opposing Bauman and the other nominee, Robert Hanna, who is white, primarily because they would not make the court more diverse - and specifically, because they're not African American or Latino.

"It's deplorable, it's disgusting, it's twisted in many ways," said State Sen. Kevin O'Toole (R., Essex), whose mother was born in North Korea.

Asians, on pace to be the second-biggest minority group in the state, should qualify as "diverse" and deserve a seat on the all-white court, O'Toole said.

The other point of opposition is over partisan balance, although in news releases, this issue has been framed as a secondary concern. Bauman is a Republican, and Hanna, although a registered independent, has worked for Christie, currently sits in his cabinet, and has donated to his campaigns. Opponents say Christie is violating a decades-old tradition by refusing to appoint a nominee of the opposing party, as other governors have done in order to keep roughly the same number of Democrats and Republicans on the court.

There are now two appellate court judges, a Republican and a Democrat, temporarily filling the two Supreme Court vacancies. While opponents conceded that Democrats could accept Bauman because he meets their diversity requirement, and reject Hanna, because he does not, because of seniority rules, Bauman would end up replacing the temporary Democratic judge. That would skew the court farther to the right than it ever has been, they said.

So both nominees have to be opposed together, opponents say, regardless of Bauman's Asian heritage.

"The package is not ideologically or racially or ethnically diverse," said Frank Argote-Freyre, president of the Latino Action Network, who noted that of Christie's five high court nominees, none has been Latino. "He's trying to stack the New Jersey court in a way that goes against New Jersey tradition in an effort to overturn decisions that are important to the Latino and African American communities."

Of specific concern are the two most significant cases the court hears ongoing cases about: requirements for state funding to poor schools and mandates on towns to provide affordable housing.

The Democrats who control the Senate judiciary committee and must approve the nomination have not said how they will vote, as is tradition.

No confirmation hearings have been scheduled.

Democrats' political base has stepped into the void and grown firmly opposed. In letters to legislators, these opponents have argued that the state's two largest minority groups - Hispanics and African Americans, who together make up a third of the state's population - must be represented. Otherwise, they will not see themselves reflected on the high court until as late as 2021, when seats on the court become vacant again.

The chair of the Legislative Black Caucus, Sen. Ronald Rice (D., Essex), went further, saying that he would vote to confirm only a Hispanic and an African American for the two vacant seats. He wants to maintain the minority representation lost when two justices recently left the bench: John Wallace, an African American whom Christie did not reappoint, and Roberto Rivera-Soto, a Hispanic who asked not to be reappointed.

Rice cited the struggles of Latinos and African Americans while acknowledging that Asian Americans also have faced discrimination. But, he added: "The reality is that African Americans have the greatest struggle in this country, and we're still discriminated against most in this country, and so are Latinos."

Rice said Christie wanted to designate just one court seat for minorities - "that spot is for y'all," as Rice put it. To take two seats that had gone to a black and Latino and then "replace us with another ethnic group" is "diminishing the growth of diversity."

O'Toole responded angrily. He noted census data showing that Asians are the country's fastest-growing minority group, with 8.7 percent of population in New Jersey compared to African Americans' 14.6 percent and Latinos' 18.1 percent.

"For anybody, for any legislator, to discount any one of the minorities on its face, it's disgusting, it's deplorable, and it's racist," O'Toole said.

Democratic calls for diversity stem from anger over Christie's unprecedented refusal of tenure to Wallace in 2010. Since then, Christie's court nominations have been among the Statehouse's biggest fights - and Christie has lost more than he has won.

Democrats approved his first pick, Anne Patterson, who is white, after a long impasse. Christie touted his next two nominees as fulfilling Democratic calls for diversity: Bruce Harris is black and gay; Phillip Kwon was born in Korea. But Democrats turned them away, citing questionable qualifications in Harris' case and shady family business dealings along with stealth Republican leanings in Kwon's case. It was the first time since the modern judiciary was established in the mid-20th century that a Legislature rejected gubernatorial high court nominees.

When announcing the Bauman and Hanna nominations earlier this month, Christie was asked about Democratic requests for an African American justice. "We had the chance to confirm an African American justice, and they turned me down," he said.

Members of both parties and experts agree that diversity is important. "It's beyond appearances; it's deeper than that," said Robert Williams, a Rutgers-Camden law professor and court expert. "It's a feeling of belonging and being represented."

Rivera-Soto, a Republican who left the bench in 2011 after seven years, is now in private practice. He would not comment on the current controversy, which he called a "political" issue. But the idea of reserving a seat for a Latino and another for an African American didn't sit well.

"That sounds perilously close to being a quota," he said. "I don't think this democracy is about quotas."

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