ALM Properties, Inc.
Page printed from: New York Law Journal
Select 'Print' in your browser menu to print this document.
Rivera Confirmed for Court of Appeals Seat
New York Law Journal
ALBANY - After a whirlwind, historic and stressful week seeking confirmation for a seat on the state's highest court, Jenny Rivera left the Capitol Feb. 11 and embarked on what is likely to be a whirlwind, historic and stressful new career: associate judge of the Court of Appeals.
Rivera, 52, who was confirmed by the Senate several days after the Judiciary Committee advanced her nomination without an endorsement, was slated to hear her first batch of cases Tuesday, with more coming Wednesday and Thursday.
The docket includes a variety of civil and criminal appeals raising issues that may be new to Rivera, a City University of New York law professor with little experience practicing law and no experience as a judge, except for a nine-month stint as an administrative law judge 20 years ago.
Professor Jenny Rivera celebrates her confirmation to the Court of Appeals on Feb. 11. At right is her partner, Audie Serrano. Tim Roske
Although several Republican members of the Judiciary Committee questioned Rivera's qualifications and opposed her nomination at the committee level, Rivera was confirmed by a voice vote by the full Senate with only a scattering of "nay" votes.
Her supporters, including domestic partner Audie Serrano, stood and applauded her as she watched from the balcony of the Senate, where Rivera and members of her family witnessed the proceedings Monday.
She was to immediately be sworn in by Chief Judge Jonathan Lippman (See Profile) as a member of the Court of Appeals.
The floor debate largely mirrored that at the committee hearing, with some senators questioning Rivera's fitness and others insisting she is uniquely qualified. Fifteen senators spoke during the session, but only twoJudiciary Committee Chairman John Bonacic, R-Mount Hope, and John DeFrancisco, R-Syracuseopposed the nomination. Since the vote was not tallied, it was unclear if any other senators voted no.
During the debate, Bonacic said he was troubled by Rivera's "very limited experience," and expressed concern that her liberal writings and focus on social justice issues would translate into judicial activism.
"I found her writing to be confusing, unclear and overwhelmingly not reflective of the cases and subject matter that comes before the Court of Appeals," Bonacic said.
As a member of the Judiciary Committee, Bonacic said that he has reviewed eight Court of Appeals nominations and never before voted against a nomination. He said several other candidates recommended by the Commission on Judicial Nomination were better qualified than Rivera.
"To put someone who has such narrow legal experience on the high court...and pass over those highly qualified nominees is not something I can support," Bonacic said.
Also on the list were: Appellate Division, First Department, Justice Rolando Acosta (See Profile); Kathy Chin, a partner at Cadwalader, Wickersham & Taft; Appellate Division, Fourth Department, Justice Eugene Fahey (See Profile); Margarita Rosa, executive director of the Grand Street Settlement; Appellate Division, First Department, Justice Sheila Abdus-Salaam (See Profile); and David Schulz, a partner at Levine, Sullivan, Koch & Shultz.
DeFrancisco said Rivera is simply not the best qualified person.
"This is not the best candidate, period," DeFrancisco said.
But more than a dozen senators praised Rivera and said she was the best candidate.
Jenny Rivera appears at a news conference with Governor Andrew Cuomo after her confirmation to the Court of Appeals. Tim Roske
At a post-confirmation press conference, Cuomo said Rivera's qualifications are "incomparable," and her resume demonstrates a lifelong commitment to public interest law.
"I believe she is going to make a great court a greater court," Cuomo said. "Jenny's perspective is going to make that court a stronger court. She is the quintessential public service lawyer and she has done great public service law all her life and when it comes to problems facing New Yorkersimmigrants, working families, people with civil rights issues, people who are victims of discrimination, people who are victims of predatory lendingshe knows the reality that people are dealing with and she knows what the body of the law says....People need to know that their perspective was brought to the table when a decision was made."
Cuomo said the one thing lacking from Rivera's resume, experience at a Wall Street law firm, speaks volumes of her commitment to using the law to help people rather than enhancing her own wealth.
Rivera spoke briefly, promising to "remain true to the rule of law."
In response to a question about whether she would be a judicial activist, Rivera said, "I made very clear to the committee and the senators when I spoke to them that I will take every case based on the rule of law and the issues that come up in the case before me, that my approach to judicial decision-making is to apply the rule of law in that case."
Rivera is atypical of Court of Appeals nominees, and the confirmation process was similarly unique.
She is the first sitting law professor to go to the court in at least several decades, and she is the first nominee since the court became an appointive body in 1977 who did not have the support of the Judiciary Committee.
Rivera's nomination raised an issue of whether an academic career with what critics called a narrow scholarly focussocial justice, especially relating to Hispanicsis an appropriate choice for the high court.
Academics and three former Court of Appeals judges (NYLJ, Feb. 8) were among those arguing that a non-judge, non-practitioner law professor could add immeasurably to the intellectual diversity of the court. But critics suggested that if a Court of Appeals nominee does not have prior judicial experience, he or she should have considerable practical experience, or at least a broad academic focus.
Several court watchers, both supporters and critics, said they will be scrutinizing Rivera's decisions much more closely than those of her new colleagues.
Michael Hutter, a long-time appellate attorney who has argued dozens of cases at the Court of Appeals, said there is a particular curiosity about Rivera because she has no judicial track record and little experience as a litigator. At her confirmation hearing, Rivera said she had taken two cases to jury verdict and argued two appeals in her career.
Hutter, a professor at Albany Law School and special counsel to the Albany firm of Powers & Santola, said Cuomo's nomination of Rivera was a particularly "bold" act since the nominee's academic writing indicates that she leans well to the left, and is outside the mainstream of politics and legal academia.
Hutter said Rivera is part of a minority of academics described as "critical legal theorists," those who are highly critical of case law and judicial reliance on precedents and "believe essentially that the present legal system is protecting the interests of the wealthy and powerful, the one percent, against the demands of everyone else, especially ethnic minorities, the working class, gays and women."
At her confirmation hearing, Rivera stressed that the work of an academic is to think outside the box and encourage other scholars and students to do the same by raising challenging questions and theories. She made clear that the work of a judge is to apply the law, and promised to do so if confirmed.
The first rulings in which she will take part are likely to appear in spring hand downs.
Ironically, the first attorney slated to appear before Rivera, John Cirando of Syracuse, is a member of the Commission on Judicial Nomination. The panel, which includes appointees of the governor, legislature and chief judge, evaluated 75 applications before submitting to Cuomo a list of seven from which he was required to choose. Cirando was scheduled to argue a breach-of-contract case, White v. Farrell, 43, yesterday.
@|John Caher can be reached at email@example.com.