CUNY Law's Rivera Named to Fill Ciparick Seat

Joel Stashenko and John Caher

New York Law Journal

01-16-2013

ALBANY - Governor Andrew Cuomo yesterday nominated Jenny Rivera, a professor at the City University of New York School of Law with no prior experience as a judge, to fill a state Court of Appeals seat left vacant by the Dec. 31 retirement of Carmen Beauchamp Ciparick.

An announcement from Cuomo's office praised Rivera, 51, as a defender of legal rights of all New Yorkers who would "make our state a fairer, more just place to live."

Rivera was a special deputy state attorney general for civil rights when Cuomo was attorney general in 2007 and 2008. Since 2008, she has been a CUNY Law professor and founder and director of the school's Center on Latino and Latina Rights and Equality.

Rivera said in a statement released by Cuomo's office that she was "deeply honored" to be the governor's choice.

"As a member of the Court of Appeals, I will work each day to uphold the laws of the state and advocate for fairness and justice," she pledged.

If confirmed by the state Senate, Rivera will become the second Hispanic to sit on the Court of Appeals after Ciparick.

"I think it's a terrific appointment," said Chief Judge Jonathan Lippman (See Profile). "Professor Rivera has a wonderful reputation for her legal and academic skills and her background is ideally suited to the court. She has spent her entire professional life in the pursuit of justice and I couldn't be more pleased with the governor's sound judgment in making such an outstanding choice for the court."

Michelle Anderson, dean of the CUNY School of Law, said "emails were flying" at the school as elated colleagues spread the news of Rivera's nomination. "It is a loss for CUNY Law, but it is a substantial win for the courts of New York," Anderson said. "Jenny has a profound commitment to equality and is a person of extraordinary integrity. She is someone who insists on fairness in process and substance and someone who is a very serious scholar and a serious faculty member."

Students, Anderson said, view Rivera with a healthy mixture of reverence and "slight fear," because she has a reputation as a very tough but fair mentor.

Albany Law School Professor Vincent Bonventre, who has written and commented on the court, said Rivera brings with her a "paper trail of scholarship devoted to domestic violence, feminist jurisprudence, equality and the upward mobility" of Hispanics.

"This is someone who might fall into the category of critical legal theorist or critical legal feminist, somebody who looks at these issues…from a very, very different angle," Bonventre said. "There just isn't any question in my mind that if the members of the Senate Judiciary Committee read her stuff, some of them will be a little uncomfortable with it, not because there is anything 'bad' in there, but it may be a kind of scholarship they are not used to. It is the kind of legal scholarship that says in society, in the legal profession, this is what is happening to women, this is what is happening to Latinas at home, and the law is not addressing it."

Senator John Bonacic, R-Mount Hope, chairman of the Judiciary Committee, said in a statement that he is looking forward to meeting with the nominee to "discuss her background, qualifications, and areas of legal interest." He encouraged anyone wishing to express an opinion to send an email to Judiciary@NYSenate.gov.

No Judicial Background

Steven Zeidman, a CUNY Law professor, said "Law professors bring much to the judicial table… That training and mindset seems just right for a judge." Zeidman, a longtime advocate of merit appointment of judges, said this nomination is further evidence of the value of appointing rather than electing judges.

"It is hard for me to imagine a law professor coming out of an elective system," Zeidman said. "In systems where judges are elected, candidates have to one way or another navigate the political process. Just the thought of that causes many terrific candidates to abandon pursuing a career on the bench," he said.

Cuomo made the selection, his first to the state's highest court since becoming governor in 2011, from a list of seven candidates recommended by the Commission on Judicial Nomination (NYLJ, Dec. 4).

The confirmation process involves a hearing before the Judiciary Committee and a vote by the committee and the full Senate. The process for a candidate who is new to the court typically takes about a month.

No gubernatorial nominee has failed to win confirmation since governors began selecting the Court of Appeals' members in 1978.

The nomination of non-judges to the Court of Appeals is rare, but not unheard of.

Judith Kaye, the first woman to serve on the court and the first woman to become chief judge, had no judicial experience when she was appointed by Cuomo's father, Mario, in 1983.

Robert Smith (See Profile), a current member of the court, was a lawyer and not a judge before being selected by Governor George Pataki in 2004.

However, Rivera would be the first appointed Court of Appeals judge to come to the court directly from the faculty of a law school and the first CUNY Law faculty member to sit on the Court of Appeals.

In July 2009, Rivera authored parts of a report presented by the National Hispanic Bar Association urging U.S. Senate confirmation of President Barack Obama's nomination of Sonya Sotomayor as a U.S. Supreme Court justice.

Rivera clerked for Sotomayor in 1993 and 1994, when the judge sat in the Southern District.

Sotomayor was also on the hiring committee for the Puerto Rican Legal Defense and Education Fund when it appointed Rivera in 1988 for what turned out to be her four-year stint as associate counsel.

Also with Sotomayor's help, Rivera will receive the 2013 Spirit of Excellence Award from the American Bar Association's Commission on Racial and Ethnic Diversity in the Profession next month at the ABA's midyear meeting in Dallas. In a letter recommending Rivera for the award, Sotomayor called her the "ultimate change maker."

"She has a deep and abiding commitment to social justice and an understanding and unwavering belief in the power of our laws to transform lives and make opportunities happen," Sotomayor wrote.

Among the awards Rivera has received from the New York State Bar Association is its 2012 Diversity Trailblazer Lifetime Achievement Award. State Bar President Seymour James Jr. said Rivera would bring "keen intellect, insightful legal scholarship and a commitment to equal justice" to the Court of Appeals.

Rivera also worked for the Legal Aid Society's homeless family rights project in 1987-1988 and was a commissioner for the New York City Commission on Human Rights from 2002 to 2007. She was an administrative law judge at the city agency in 1992 and 1993, her only experience in a quasi-judicial position.

Rivera, who graduated from New York University Law School after attending Princeton as an undergraduate, lives in the Bronx. She also has an LL.M from Columbia Law School.

Rivera would serve a 14-year term. Associate judges on the Court of Appeals make $177,000 a year ($184,800 when a judicial pay raise goes into effect on April 1, 2013).

In addition to Rivera, two other Hispanics were on the list sent to Cuomo to fill the Ciparick seat: Justice Rolando Acosta of the Appellate Division, First Department (See Profile), and Margarita Rosa, the executive director of the Grand Street Settlement who served in the 1990s as commissioner of the Division of Human Rights under Mario Cuomo.

Acosta, in particular, was considered a strong candidate due to his more than 15 years on the bench in the Civil Court, Supreme Court and, since 2008, the First Department.

Hispanics comprise more than 16 percent of New York state's population according to the 2010 U.S. Census, and are the state's largest minority group.

Rivera is in line to join a court that will experience a period of changing lineups after nearly four years of stability between Jonathan Lippman's appointment as chief judge in January 2009 and the two openings that occurred at the end of 2012 due to the November death of Judge Theodore Jones Jr. (NYLJ, Nov. 7) and the mandatory retirement of Ciparick (NYLJ, Dec. 26).

The Commission on Judicial Nomination is reviewing the applicants for the seat that Jones, the only black member of the court, had held since early 2007. It will propose its list of candidates to Cuomo by March 7.

In the meantime, the court heard oral arguments in the 26 cases on its January calendar with five judges, Lippman and Associate Judges Susan Phillips Read (See Profile), Victoria Graffeo (See Profile), Eugene Pigott Jr. (See Profile) and Smith—the minimum allowed under the state Constitution.

Others on the list for the Ciparick opening were Justice Sheila Abdus-Salaam of the First Department (See Profile); Kathy Chin, a partner at Cadwalader, Wickersham & Taft; Justice Eugene Fahey of the Fourth Department (See Profile); and David Schulz, a partner at Levine Sullivan Koch & Schulz.

Kaye, the chairwoman of the commission, had made racial, ethnic and gender diversity a priority. She held meetings around the state and solicited nominations from community groups, law schools and bar associations.

Kaye said those efforts had paid off with record numbers of applicants (75), female applicants (35) and minority applicants (24) for the Ciparick seat.

Kaye said the commission has made similar outreach efforts to expand the diversity of the candidate pool for Jones' successor.

@|Joel Stashenko can be contacted at jstashenko@alm.com; John Caher at jcaher@alm.com.