The New York Law Journal reported yesterday that Governor Andrew Cuomo nominated CUNY law professor Jenny Rivera to the New York Court of Appeals seat left open by Judge Ciparick's retirement. Much of the story revolves around how Rivera, a female Hispanic, will succeed another female Hispanic, thereby preserving the Court's current ethnic makeup. However, for a practicing lawyer such as myself, the more interesting angle is that Rivera arrives to the Court directly from academia, a first in the Court's history. Court observer and law professor Vincent Bonventre explains how Rivera's background may complicate her confirmation:
"This is someone who might fall into the category of critical legal theorist or critical legal feminist, somebody who looks at these issues…from a very, very different angle," Bonventre said. "There just isn't any question in my mind that if the members of the Senate Judiciary Committee read her stuff, some of them will be a little uncomfortable with it, not because there is anything 'bad' in there, but it may be a kind of scholarship they are not used to. It is the kind of legal scholarship that says in society, in the legal profession, this is what is happening to women, this is what is happening to Latinas at home, and the law is not addressing it."
No doubt, there may be some members of the senate committee who will pick apart the more controversial aspects of Rivera's academic work, and probe her to explain how these writings inform her judicial philosophy. However, the committee should examine more broadly about what kind of jurisprudence Rivera will bring to the table. For instance, what provisions of the CPLR should be interpreted broadly? Why? In a close case, would the nominee defer to stare decisis? Or, in such a case, should the Court first seek to "do justice?" Should New York take an activist approach in addressing the problem of false confessions and misidentifications in criminal cases? Or, are these problems better left for the Legislature and the Executive to work out? What types of issues should the Court scrutinize more closely and why? Is building consensus an important skill for an appellate judge? If not, why? Under what circumstances is it appropriate to refer to legislative history, if at all? Does the Court have a defined role in fulfilling the Legislature's intent? Or, should the Court be bound to a statute's text?
Perhaps some of these questions are a bit too specific, for they ask the nominee to explain how she would rule on cases likely to come before the Court. But, the committee should at least attempt to explore the candidate's overarching judicial philosophy (though if history is any indication, I doubt they will), not because Rivera is somehow unqualified - indeed, her academic and professional credentials indicate otherwise - but because lawyers and voters should know a nominee's judicial approach before elevating someone to such a powerful position. Nevertheless, the cynic in me says I should not hold my breath.