section9 asked: I might have missed you blogging about it already, but would you care to share your thoughts (if any) on Governor Cuomo's appointment of Jenny Rivera to the NYS Court of Appeals?
1) From a bird’s eye view, I love Rivera’s record. A few excerpts:
Professor Rivera is a former Administrative Law Judge of the New York State Division of Human Rights, a former member of the New York City Commission on Human Rights, and served as the Special Deputy Attorney General for Civil Rights for New York State Attorney General Andrew M. Cuomo. As Special Deputy Attorney General she assisted in the development and implementation of the Attorney General’s civil rights agenda, supervised the Civil Rights Bureau and organized and held statewide outreach sessions on civil rights issues.
[Rivera] was also a lawyer for the Legal Aid Society’s Homeless Family Rights Project where she represented homeless families in federal and state class actions and administrative hearings, and served as an Associate Counsel for the Puerto Rican Legal Defense and Education Fund, where she worked on education and employment discrimination, equity and testing issues, gender equality and language rights discrimination.
Her scholarship ain’t too shabby either. She particularly wins brownie points with me for writing about § 1983 liability in police misconduct cases:
Her scholarship includes, “An Equal Protection Standard for National Origin Subclassifications: The Context that Matters,” “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 § 1983 Municipal Liability Claim,” “The Violence Against Women Act and the Construction of Multiple Consciousness in the Civil Rights and Feminist Movements,” “Domestic Violence Against Latinas by Latino Males: an Analysis of Race, National Origin, and Gender Differentials,” and “Puerto Rico’s Domestic Violence and Intervention Law and the United States Violence Against Women Act of 1994: The Limitations of Legislative Responses.” She is also the author of a 1997 study and a 2003 follow up study on the availability of domestic violence services for Latinas in New York State.
2) I think it’s a little silly for Republicans to claim Rivera has no judicial experience. For starters, she served as an Administrative Law Judge for the NYS Division of Human Rights. As a person who’s argued before ALJ’s, I can tell you that there is nothing fake about an ALJ. In fact, ALJ’s often have more authority than a traditional judge, because their power comes almost entirely from statute. In NYS Unemployment Insurance hearings, the ALJ’s don’t even have to follow the NY CPLR evidence rules. Such exemptions don’t apply in New York’s “courts of record.”
Even if you discount her ALJ service, however, it remains the case that Rivera does have judicial experience. She clerked for Sotomayor, and also served as a Law Clerk in the United States Court of Appeals, Second Circuit. Law clerks are the lifeblood of the judiciary. In many cases, it is the clerks—and not the judge—who are writing the decisions. There is little, if any insight into the judicial process that a judge would have which his or her law clerks would not. They are simply too intimately involved in the business of the court for anyone to convincingly argue that a clerkship /= judicial experience. Particularly when the clerks draft many of the opinions of the court. This is analogous to the role of magistrate judges, who in the federal system, draft advisory opinions that are often adopted by the district courts.
So all in all, I think she’s a fine choice for the NYS Court of Appeals. I think it’s ok to be skeptical of someone who’s never been a judge, but anyone who thinks an ALJ isn’t a real judge has, frankly, never argued a case in front of an ALJ.