ALBANY - A review of Court of Appeals nominee Jenny Rivera's scholarly writings portrays an attorney intensely proud of her Puerto Rican heritage and deeply concerned with social justice, women's rights and feminist issues, especially as they impact the Hispanic population.
But while the writings offer strong evidence that Rivera is a political and social liberal, they give little indication of whether she would be an activist willing to bend the law to accomplish her goals, a restrained judge reluctant to meddle in the affairs of the other branches of government, a judge prone to dissents, or some combination of the various traits, habits and approaches that make up a judicial philosophy.
Unlike most nominees for New York's highest court, Rivera, a 52-year-old City University of New York law professor, has a paper trail of academic articles that provides personal insight different from what can be gleaned from the judicial opinions and dissents of an appellate division judge.
One observer said Rivera's writings are replete with phrases and liberal buzzwords that could raise red flags with conservatives and Republicansidioms such as "national origin sub-classification," "multiple consciousness of gender equity," "ethnic and racial colonies," "paradigmatic challenges to race-based theory," "accent discrimination" and "environmental and food justice."
But one of her articles suggests Rivera might not be inclined to stretch the limits of the law to achieve her social objectives and may favor restraint over activism.
In a 2010 article in the Hispanic National Bar Association Journal of Law & Policy, Rivera notes that then-U.S. Supreme Court nominee Sonia Sotomayor's voting record as a judge of the U.S. Court of Appeals for the Second Circuit was similar to her Foley Square colleagues in civil rights issues, "generally unfavorable to the plaintiff."
Yet Rivera, who clerked for Sotomayor for a year in the mid-1990s when the justice was a trial court judge in the Southern District, wrote with approval that Sotomayor's decisions show a "commitment to close and faithful reading of the plain language of federal statutes," an "opposition to judicial overreaching" and a recognition of the "role of the judiciary and required level of deference to public officials in cases involving the government."
The state Senate Judiciary Committee, which will hold a confirmation hearing sometime in the next two weeks, is likely to seek assurances from Rivera that she will show appropriate deference to the political branches. Republican Senators frequently ask Court of Appeals nominees about their judicial approach, expressing concern that the judges a block down from the Capitol are not always as deferential as the legislators would like, and often want to know where the nominee stands on various issues of law.
They will have an extensive body of academic work at their disposal, but almost all of the professor's law review articles and other writings deal with feminism, domestic violence, language discrimination and Latino/Latina issues. Rivera has written little or nothing on criminal law (with the exception of hate crimes), commercial law, torts or the other types of cases that dominate the Court of Appeals' caseload. Her writings do not provide the broad perspective that would be more evident if she was coming from the Third Branch rather than the ivory tower.
Civil Rights Issues
She has written about the "obvious disparity for women," noting that women as of 2003 were still earning less than men, had higher rates of poverty, made up a "strikingly small" portion of the judiciary and "constitute a disheartening small number of the nation's deans and law professors" ("Moving the Margins: Assimilation and Enduring Marginality," 12 Columbia Journal of Gender & Law 473, 2003).
She has bemoaned attacks "on reproductive rights and the related ongoing diminution in quality health care services for poor women and women of color" ("The Violence Against Women Act of 1994: A Promise Waiting to Be Fulfilled," 4 Journal of Law and Policy, 1996).
Rivera also has written about equal protection and argued that in addition to race, ethnicity, culture, language and history should factor into affirmative action jurisprudence.
"The question of the appropriate legal consideration owed to these factors in determining the lawfulness of national origin classifications is of immediate urgency to Latinos, who, as a group, are targets of discrimination based on national origin as well as racial animus," Rivera wrote in 2007 ("An Equal Protection Standard for National Origin Subclassifications: The Context That Matters," 82 Washington Law Review 897, 2007). "The success or failure of affirmative action legislation intended to help remedy this discrimination may hinge on this analysis."