ALBANY – Three former Court of Appeals judges have joined the chorus of supporters urging the state Senate to confirm law professor Jenny Rivera to New York’s highest court.
Joseph Bellacosa, Stewart Hancock Jr. and Howard Levine wrote letters to support Rivera’s nomination.
On Feb. 4, the same day Rivera weathered an aggressive Judiciary Committee hearing in which her qualifications, experience and ideology came under attack, three retired judges—Joseph Bellacosa, Stewart Hancock Jr. and Howard Levine—each wrote to the committee and Chairman John Bonacic, R-Mount Hope, in support of Rivera, a New York City University School of Law professor. The three letters are among dozens sent to the Judiciary Committee regarding the controversial nomination.
Nearly all of the letters, many from colleagues, students and former students, praise Rivera’s intellect, scholarship and temperament. But several raise the same concerns of many Republican senators about Rivera’s lack of judicial experience, relatively slim experience as a practitioner, narrow academic focus on social justice issues and liberal ideology.
Rivera’s nomination for the high court by Governor Andrew Cuomo is the most controversial and polarizing since the Court of Appeals became an appointive bench in 1977. For the first time, the Judiciary Committee declined to endorse a governor’s nominee and advanced the matter to the Senate without a recommendation.
Rivera’s candidacy was supported by all 11 Democrats on the committee, but eight Republicans voted against her, one was absent and three declined to take a position but advanced the nomination. Republican lawmakers said their vote was in part a message to the Democratic governor that the Judiciary Committee will not rubber-stamp his judicial nominations (NYLJ, Feb. 5).
Further, on Feb. 6, Senator Ruben Diaz, D-Bronx, said in a press release that there are at least 11 Hispanic judges who would have been a better choice than Rivera to succeed Judge Carmen Beauchamp Ciparick (NYLJ, Feb. 7). Ciparick, the first Hispanic to sit on the high court, retired on Dec. 31.
In a radio interview on The Capitol Pressroom, a public broadcasting program in Central New York, Cuomo said he is confident Rivera will be confirmed when the Senate considers her nomination on Feb. 11.
"I think at the end of the day Jenny Rivera is going to be [confirmed] by the state Senate for the Court of Appeals," Cuomo said.
The show’s host, Susan Arbetter, pressed Cuomo on why he selected Rivera, who had worked for him briefly in the attorney general’s office, over Justice Rolando Acosta of the Appellate Division, First Department (See Profile).
Acosta, like Rivera, is Hispanic. But unlike Rivera, Acosta has years of experience as an appellate and trial judge and was the only one of the seven candidates who garnered the top rating from four major bar groups: the New York State Bar Association, the New York State Trial Lawyers Association, the Women’s Bar of the State of New York and the New York City Bar.
"I don’t want to compare anyone to any one other person," Cuomo responded. "You are assuming you know the background of every individual and…all the facts we know."
Cuomo, who had to choose from the seven names provided to him by the Commission on Judicial Nomination, also stressed that he does not believe judicial experience is a requisite to sit on the Court of Appeals.
The governor noted that former Chief Judge Judith Kaye had never been a judge before she was appointed to the court by his father, Governor Mario Cuomo, in 1983. Kaye, however, as several observers have noted, had practiced for 20 years and was a highly regarded commercial litigator when the elder Cuomo put her on the bench.
"I reject the premise that unless you were a judge you cannot be a good judge," Cuomo said. "I know Jenny Rivera. I worked with her in the attorney general’s office. She’ll bring a different perspective than most judges, but I think that’s what will make the court a better court."
Former Judges’ Letters
In their letters, all of which begin "Dear Chairman Bonacic and Members of the Senate Judiciary Committee," Bellacosa, Levine and Hancock say that a career in academia should not preclude an individual from serious consideration for the court.
"It has come to my attention that some sources have challenged the qualifications of Professor Jenny Rivera for service on the Court of Appeals on the ground that an academic legal career provides insufficiently broad professional experience adequately to address and resolve the myriad legal issues that come before the State’s highest court," wrote Levine, now of Whiteman Osterman & Hanna in Albany.
He said that while he "certainly would not like to see the Court of Appeals composed only of law professors," an academic perspective would add to the court’s intellectual diversity.
In an interview, Levine said he wrote the letter after "someone brought the matter to my attention." He declined to identify who approached him, but said it was not a member of the Cuomo administration.
"I felt it would be a shame to set some sort of automatic disqualification because of a career path that is actually one where the person’s experience and accumulated knowledge would definitely be a positive contribution to the work product of a collegial court," Levine said.
Hancock, of Goris & O’Sullivan in Cazenovia, said in his letter that the court should not be comprised solely of people like him. Hancock, like Levine, is a former Appellate Division justice who brought years of judicial experience to Albany.
"Not only does having a professor on the Court add intellectual heft, but also having a diversity of perspectives on the Court is of the utmost importance," Hancock wrote. "Different perspectives create a richness to the Court’s debate and dialogue that leads to well-reasoned, thoughtful judicial opinions."
Bellacosa, who had been an assistant dean and professor at St. John’s University School of Law before his appointment to the court, said in his letter that he is familiar with Rivera’s credentials and experience and believes "she would contribute a useful and unique set of perspectives and talents that will play a significant role in helping the Court as an Institution to reach thoroughly considered and fair decisions."
Also among those writing in support of Rivera were Lillian "Lee" Llambelis, special assistant district attorney for community affairs in the Manhattan District Attorney’s Office; Albany Law School Dean Penelope Andrews; Carol Robles-Roman, New York City’s deputy mayor for legal affairs and counsel to the mayor; and Elizabeth De Leon Bhargava, deputy commissioner for the New York City Department of Small Business Services and the Puerto Rican Bar Association.
But a handful of letters questioned Rivera’s fitness for the state’s highest court.
Stanford Hausler of Cox Pradmore Skolnik & Shakarchy in Manhattan said Rivera, who told the committee that she had taken only two cases to jury verdict and argued two appeals in her career, seems to have "a very thin record of practical legal achievement."
"I do not oppose Professor Rivera’s appointment to the Court of Appeals," Hausler wrote. "I just think the Senate should make sure she has the proper experience for the job."
John Downing Jr. of Downing & Peck in Manhattan "vigorously" objected to Rivera, who he said "would be a historically disastrous choice."
"Professor Rivera has never been a County Court, Civil Court or Supreme Court judge, and hardly practiced law as an attorney," Downing wrote. "Professor Rivera has no experience with New York Civil Practice Law and Rules or the New York Criminal Procedure. She has no experience with the process of trials, appellate process, or the long process of taking a case from inception to trial, to the Appellate Division and the Court of Appeals."
An anonymous letter, which seems to have come from a judge, said that many judges are "dismayed" with the Rivera nomination and "many of us feel that Prof. Rivera’s legal background is so thin and marginalized as to make her a totally unqualified candidate to sit on the high court of this state."
Rivera, 52, has degrees from Princeton University, New York University School of Law and Columbia Law School. She founded and runs the Center on Latino and Latina Rights and Equality at CUNY Law, served as a special deputy attorney general for civil rights in 2007 and 2008, clerked for then Southern District Judge Sonia Sotomayor for a year in the early 1990s, was an administrative law judge with the New York City Commission on Human Rights for about a year, worked with the Legal Aid Society’s Homeless Family Rights Project for 11 months in the late 1980s.
Rivera and her husband, Audie Serrano, a marketing and promotional specialist with Immedia Mobile, a mobile marketing company, live in the Bronx.
According to a financial disclosure statement, Rivera is paid $177,213 annually as a full-time professor, but collects additional stipends of up to $8,500 annually for activities such as serving as a bar mentor or teaching during the summer. She was also paid $19,600 over the past year as an associate consultant for Rossein Associates, a human resources consulting firm run by another CUNY professor.
Rivera lists total assets of about $1.1 million, almost entirely real estate, and liabilities of $371,976, primarily mortgages.
In addition to a 2,078-square-foot primary residence in the Bronx worth $386,000, Rivera has a 2.5 acre residence in Ashland, N.Y., and a timeshare in Florida. The only liabilities listed are mortgages on her primary and secondary residences and a $7,916 automobile lease.
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