New York Court of Appeals

Two straight articles about Senate confirmation powers from me. Using @recessappt as my Twitter handle is looking pretty prescient.

This time we’re talking about the New York State Senate, where Governor (and world’s least discreet White House aspirant) Andrew Cuomo found out that the Judiciary Committee has begrudgingly allowed Cuomo’s nominee for the New York Court of Appeals, Jenny Rivera, to move to the floor without a recommendation. A bold move, but at least Rivera made it out of the committee, because the committee had enough ticked-off GOP members that it could have killed the nomination outright — and the committee has never rejected a governor’s nominee before. As is, a few Republicans voted to let the nomination move forward with recommendation rather than kill it.

So there you go Democrats! Cuomo can get bulldozed by a Senate like a champ.

But at least the whole affair provides us with highbrow commentary on the state of affirmative action….

To recap, Governor Cuomo nominated Rivera, a City University of New York School of Law professor, a couple weeks back. River would replace retiring Judge Carmen Beauchamp Ciparick. Judge Ciparick, for those following along at home, was a Hispanic jurist. Attempting to replace one Hispanic jurist with another? That’s not at all going to inspire a political sh*tstorm about “GRRR…QUOTAS!!!”

So it totally caused an uproar about quotas. Committee Chair John Bonacic, a Republican from Mount Hope (Fordham Law ’68), explained his nuanced understanding of affirmative action:

“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 African-American, maybe we need an Asian. I don’t necessary [sic] 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 he about the best and the brightest.”

CUNY Prof. Jenny Rivera

Sure. I’ll bet that works out to be super diverse. Perhaps I’m a bigger supporter of affirmative action than most since, as a white man, I’m an affirmative action hire at ATL.

Bonacic’s statement implies that Jenny Rivera is not, in fact, the “best and the brightest,” apparently because she has never served as a judge. Interesting that Bonacic and his buddies weren’t distressed when George Pataki nominated Robert S. Smith to the Court of Appeals based on being nothing but a Paul Weiss litigator his whole career (I guess there was also the one year as a Columbia Law School adjunct… my bad).

While never serving as a full-fledged judge, Rivera’s résumé looks pretty good. In addition to her legal scholarship, she was an ALJ and Special Deputy Attorney General. She also clerked for now-Justice Sonia Sotomayor. I can certainly think of worse judicial appointments in history.

Perhaps the committee had her confused with the late Jenni Rivera. If you try to Google the professor all you get are links about the singer’s career. That Jenni Rivera probably would make a bad judge since drug cartels are claiming she worked for them. Professor Rivera, on the other hand, seems pretty straight edge.

Rivera will probably make her way to the Court of Appeals in any event. While Republicans control the Judiciary Committee, the Senate itself is in Democratic hands, and Rivera has enjoyed complete Democratic support so far.

So Rivera’s nomination process may well mirror the confirmation of her mentor Sotomayor, who faced all sorts of opposition and ultimately made it to the bench with the support of all the Democrats and a handful of Republicans.

And then Cuomo can start working on a New York Thruway drone strike program to look even more presidential.

Rivera Nomination Advances to Full Senate Without Recommendation [NY Law Journal]
Faculty Bio: Jenny Rivera [CUNY School of Law]


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