Court of Appeals Nominee Jenny Rivera featured in NewYork Law Journal Article
Rivera's Record Runs Deep but Is Limited to Social Justice Issues
By John Caher Contact All Articles
New York Law Journal
January 24, 2013
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 Republicansâidioms 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."
Additionally, Rivera has written that Hispanics are routinely subjected to "violence by public officials" in the form of police brutality, unwarranted stop-and-frisks, prosecutorial bias resulting in higher charges and longer sentences and a seeming indifference to domestic crimes suffered by Latinas.
"While these forms of violence by public officials stand apart from violence by private individuals, both are intricately connected and arguably codependent," Rivera wrote in 2009 ("The Continuum of Violence Against Latinas and Latinos," 12 New York City Law Review 399, 2009). "Inflammatory media stereotypes that propagate inaccurate images of Latinos as a danger to the United States government and economy are an integral part of this continuum of violence."
She further complained that authorities as well as private individuals "have turned their anger towards one sector of the Latino community, Latino workers who are undocumented," a hostility "made possible by a new, yet all too familiar, wave of anti-immigrant rhetoric."
If Rivera is confirmed, which seems likely because no Court of Appeals nominee has ever been rejected by the Senate, she would bring the perspective of a career academic to the courtâa perspective it has rarely, if ever, had.
While many renowned scholars have sat on the U.S. Supreme Court, including the late Felix Frankfurter and incumbent Elena Kagan, none of the current or recent judges of the state's top court came from academia. Many were former Appellate Division justices, some were lower court judges, a few were practicing lawyers.
Court watchers and staff were unable to identify any judge who moved directly from a law professorship to Eagle Street.
Retired Court of Appeals Judge Stewart Hancock Jr. said the addition of an academic to the court would increase its intellectual diversity. Hancock said since judges are more commonly elevated from the Appellate Divisionsâas was heâthey tend to have similar experiences, and the experiences of litigators follow a trajectory similar to that of trial and mid-level appellate judges.
"To have someone who can look at the sophisticated problems that come up in perhaps a different way than those who came up from the Appellate Divisions adds breadth to the court, and I think that is a positive," said Hancock, now of counsel at Goris & O'Sullivan in Cazenovia.
Although Rivera worked early in her career as a Legal Aid attorney and administrative law judge and spent a year and a half as a special deputy state attorney general for civil rights, she has primarily worked in academia.
Rivera, a history major at Princeton before earning law degrees at New York University School of Law (J.D.) and Columbia (LL.M), was an assistant professor at Suffolk University Law School in Boston in the mid-1990s, a visiting professor at American University in Washington and has been on the CUNY faculty since 1997.
And unlike most judges, Rivera did not arise from politics. She is a registered Democrat like the governor who nominated her, Andrew Cuomo, and she worked for Cuomo when he was attorney general, but she has never held elective office.
'Practical and Pragmatic'
Rivera's writings seem to combine theoretical and pragmatic themes.
For instance, she has written about domestic violence from an abstract viewpoint and has also offered suggestions on how best to serve Latina victims ("The Availability of Domestic Violence Services for Latinas in New York State," 21 Buffalo Journal of Public Interest Law 37, 2002-2003). She has written about intimate partner violence and possible remedies ("Intimate Partner Violence Strategies: Models for Community Participation," 50 Maine Law Review, 283, 1998). And she has addressed notice in Â§1983 claims against municipalities, concluding that recent federal court rulings have reduced the effectiveness of the statute and suggesting that notice should not be based just on inference ("Extra! Extra! Read All About It: What a Plaintiff 'Knows or Should Know' Based on Officials' Statements and Media Coverage of Police Misconduct for Notice of a Â§1983 Municipal Liability Claim," 28 Fordham Urban Law Journal 505, 2000).
"The one thing I think is very interesting about her work is it is very practical, bridging the gap between traditional academic scholarship and talks about a problem and solving a problem," said Ruthann Robson, a CUNY law professor who has collaborated with Rivera on several articles. "She is very solution-oriented and practical: 'Here is what the law should be. Here is what the state could do. Here are some recommendations.' She is not someone who just complains and spins thing in an ivory tower sort of way. She is very grounded."
Christine Ortiz, a third-year student at CUNY Law who worked with Rivera at the Center for Latina and Latino Rights and Equality, which Rivera founded, said Rivera is committed to her students.
"She always makes sure to have that one-on-one connection with us, and to take the time with her students," Ortiz said. "It shows how humble she is."
The center, which focuses on social justice and Latina/Latino issues, examines matters from a scholarly perspective but also offers practical solutions to the problems it identifies. For example, it advocated for greater Federal Communications Commission activity in combating hate crimes, and students under Rivera's tutelage meet with and strategize with litigators.
"She is very practical, and pragmatic, and has an engagement in the law," Robson said.
But some practitioners, academics and judges, all of whom requested anonymity, expressed concern that Rivera's academic writing as well as her practical experience are largely geared toward a narrow part of the lawâcivil rights and Latino/Latina affairsâand not the panoply of issues that arrive at the Court of Appeals. They said they see no evidence yet of an uncommon intellect, originality or any traits that would distinguish her from many other law professors, let alone experienced Appellate Division justices.
Others observers, however, are unconcerned, noting that many of the tribunal's best judges had focused on a relatively narrow field of law prior to their ascension. Former Chief Judge Judith Kaye, for example, had never been a judge, spent most of her career as a commercial litigator and yet authored landmark opinions in areas of the law she had never practiced.
Cuomo has said little about why he chose Rivera over the other six candidates (Appellate Division, First Department Justice Rolando Acosta; First Department Justice Sheila Abdus-Salaam; Fourth Department Justice Eugene Fahey; David Schulz of Levine Sullivan Koch & Schulz; Kathy Chin of Cadwalader, Wickersham & Taft; and Margarita Rosa, the executive director of the Grand Street Settlement). In a press release, the governor cited Rivera's "legal expertise and passion for social justice."
Theory Versus Practice
Paul Horwitz, a professor at the University of Alabama School of Law, said that historically academics have ended up on courts when a president or governor is eager to appoint someone with a particular philosophy or point of view.
Horwitz said scholars potentially bring to the judiciary "a breadth of vision, a command of legal materials, a capacity to deal with complex legal issues, a capacity to read and write a great deal and hopefully occasionally write well. Those are the strengths."
The weakness, he said, is whether a judge who came from the academy may be stranded in theory and remote from practical, real-world considerations.
"There is an element of 'it works in theory but does it work in practice,'" Horwitz said. "I think that potential criticism or concern is absolutely fair and important and perhaps speaks to things we as law professors ought to be doing more, but hopefully an appellate bench has a diversity of approaches."
Patricia Salkin, dean of Touro Law Center, said the work of an academic is not unlike the work of an appellate judge and suggested that professors may be better suited for an appeals bench than the "average transactional practitioner."
"What a law professor does in the classroom is question students about the facts of the case and the application of the law and then they will change it up, to change the facts slightly and to seek different interpretations based on past precedent," Salkin said. Appellate judges on "hot" benches do the same thing, she added.
"They are trying to get to the nuanced distinctions between the facts in each new case before them and how the law should apply to those distinctions and the facts in those cases," Salkin said.
Stewart Schwab, dean of Cornell Law School, said he was pleased that Cuomo "recognized the talents of one of the law professors in our state and validated that. We try hard not to just be up in the ivory tower and are happy that the governor can recognize the transferrable skills that we professors have."
Schwab said that sitting on the Court of Appeals is an intellectual exercise not all that different from the scholarly pursuits of a law professor.
Court of Appeals' judges "get the issue and try to figure it out from all sides and angles and what the best result is and then they have to explain their decision and their thought process," Schwab said. "Professors, particularly in their writings, approach their jobs in very much the same way."
Vincent Bonventre, a professor at Albany Law School, said the court has had its share of towering intellects. But Bonventre, a former clerk and longtime observer of the court, said some of its greatest judges were known less for their scholarship than their "basic fairness, decency, courage, and reliable wisdom."
It remains to be seen what Rivera, who according to colleagues is bright, committed, energetic and ethical, will bring to the court.
Rivera did not respond to a request for an interview.