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Without Recommendation, COA Nominee Advances

By John Caher Contact All Articles 

New York Law Journal

February 5, 2013

Jenny Rivera

ALBANY - The close vote by the Senate Judiciary Committee on the nomination of law professor Jenny Rivera for the Court of Appeals sends a message to Governor Andrew Cuomo that the Legislature will not rubber-stamp his judicial nominations, observers say.

In a rare and apparently unprecedented move, the committee yesterday allowed Rivera's nomination to advance to the full Senate, but without its endorsement.

Although pundits expect Rivera to be confirmed Feb. 11, an extraordinarily heated dispute over her qualifications and experience, and the narrow vote, is viewed as a warning to the governor.

Rivera, 52, is the first person nominated to the high court by Cuomo, who will appoint at least two more Court of Appeals judges in his first term, which runs through 2014, and, if he serves a second term, will appoint the entire court. Several lawmakers were critical of the governor for nominating a candidate with no judicial experience, relatively meager practical experience and a paper trail of academic writings focusing almost exclusively on social justice issues.

Judiciary Committee Chairman John Bonacic, R-Mount Hope, said in an interview that except for lobbying lawmakers on the night of Feb. 4—after Rivera endured a four-hour confirmation hearing and her nomination appeared in jeopardy—the Cuomo administration did not reach out to the Legislature, apparently assuming the committee would simply go along with its wishes.

"What we are telling this governor is that the Legislature deserves the respect of talking to them about the list of nominees and weighing in before we get to this public process, in fairness to the candidate, in fairness to each separate branch of government," Bonacic said.

There was no immediate response from the governor. Rivera, who teaches at the City University of New York School of Law, was not immediately available for comment.

Rivera garnered the support of all 11 Democratic members but failed to capture the 12 votes necessary for committee support. Eight Republicans opposed her nomination, one was absent and three voted to allow the matter to go forward, but without a recommendation.

During a contentious vote, several Republicans questioned Rivera's qualifications, and some Democrats implied that the opposition was motivated by ethnic bias. Rivera is of Puerto Rican heritage and if confirmed would be the sole Hispanic on the seven-member court. The court's first Hispanic judge, Carmen Beauchamp Ciparick, retired on Dec. 31, and it is her seat Rivera is seeking.

Senator John DeFrancisco, a Republican from Central New York, experienced trial lawyer and former chairman of the Judiciary Committee, said he supported the need for diversity on the court and is not opposed to continuing Hispanic representation. But he found Rivera lacking in experience and qualifications.

"I understand fully the governor's reasoning," DeFrancisco said. "But I also understand that the Court of Appeals is a special place. It is a place that is going to help form the law over the next number of years. We have an obligation…to pick the best possible candidates and…if a Hispanic is what [the governor] wants, we have to pick the best possible Hispanic judge for that position, the one with broad-based experience, the one who has some experience."

DeFrancisco said Rivera, who has tried only two jury trials and argued two appeals in a career spent primarily in academia, does not have the necessary qualifications to sit on the high court.

The senator also said a Court of Appeals judge must have the ability to write clearly and succinctly. He said he considered Rivera's academic writings opaque, and found her attempt to explain those writings during the Feb. 4 hearing equally unclear.

'Patience of Job'

On the other hand, Senator Brad Hoylman, D-Manhattan, said he found Rivera's articles "clear, concise and compelling," and Senator Neil Breslin, D-Albany, praised the nominee for exhibiting the "patience of Job" in tolerating the lengthy questioning to which she was subjected during her hearing.

Senators Ruth Hassell-Thompson, D-Bronx, angrily implied that the Republican opposition was rooted in bias.

"If this body rejects Professor Jenny Rivera for this position, I believe it to be an offense to the struggle of women, for women seeking equal employment opportunities," Hassell-Thompson said. "It is an insult to the diversity and the aspirations of Hispanic Americans everywhere and I think the rejection of Professor Jenny Rivera is very obviously a slap in the face of the governor who has selected her after due process."

Hassell-Thompson noted that the Court of Appeals is an appellate bench, which she said is the "perfect home" for a "legal scholar" such as Rivera, and she scolded her colleagues for "interrogating" the nominee during the confirmation hearing.

"During these hearings, you attacked her," Hassell-Thompson said. "You attacked her writings as being narrow…How dare we. How dare we attack her writings and minimalize her life's work and her career. How dare we reduce her dreams and aspirations to pettiness and smallness. We should be ashamed."

Bonacic countered in his hearing remarks that Rivera's writings, which evince a liberal philosophy and frequently refer to the injustices suffered by the Hispanic community, raise a question in his mind of whether she would be an objective judge or an activist who uses the court to advance a social and political agenda.

"If there were a lawsuit with a Latino class against a corporation, where she feels there are gaps in the law, will she engage in judicial activism and not look at the facts independently and fairly, but from the passion of which she came from?" Bonacic asked. "Don't know if she'd be a strict constructionist and interpret the law according to the statute we passed, or will she engage in judicial activism?"

Bonacic also said that Court of Appeals nominations should be made without regard to race, color or creed, and said governors should be concerned only with the quality of a candidate and not attempt to achieve racial, ethnic, gender or geographical balance in judicial appointments.

"It is not [just] this governor," Bonacic said. "They tend to be social engineers of the court. Everything has to be racially balanced. We need a woman, we need a Hispanic, we need an Afro American, maybe we need an Asian. I don't necessarily adhere to those philosophies. If seven women are the most qualified and they all happen to be Hispanics and the brightest, put them all on. It should never be about color or gender. It should be about the best and the brightest."

The senator in his interview said he did not think the Republican opposition to Rivera would offend the Hispanic community, and stressed that if the governor had nominated a Hispanic candidate who was better qualified he would have supported the nomination.

"When you explain to a Hispanic that we do not oppose a Hispanic who is qualified, as opposed to one who may not be, I don't think they have a problem," Bonacic said.

Rivera was among seven candidates approved by the Commission on Judicial Nomination. The others were Appellate Division justices Sheila Abdus-Salaam (See Profile) and Rolando Acosta (See Profile) of the First Department and Eugene Fahey (See Profile) of the Fourth Department; Margarita Rosa, executive director of the Grand Street Settlement; David Schulz of Levine Sullivan Koch & Schulz; and Kathy Hirata Chin of Cadwalader, Wickersman & Taft.

If Rivera is not confirmed, the selection process, which would take at least two months, would have to begin anew, according to §63 of the Judiciary Law.

Meanwhile, the court is functioning with five judges and two vacancies: the Ciparick seat for which Rivera was nominated and the slot that was held by Judge Theodore Jones, who died in November. The commission is slated to provide Cuomo with a list of candidates for the Jones seat on March 4.

Chief Judge Jonathan Lippman said he is eager for the court to return to full power.

"We are going to await developments," he said. "Professor Rivera is waiting like all of us to see what the Legislature does. But that is our system."

@|John Caher can be contacted at jcaher@alm.com.

Find similar content

• Cadwalader, Wickersham & Taft
• Levine Sullivan Koch & Schulz

• Democrats
• Republicans
• Cadwalader, Wickersman & Taft
• Commission on Judicial Nomination
• The City University of New York School
• Judiciary Committee
• Court of Appeals

• US Supreme Court

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