Stop Inventing Excuses
by Juan Cartagena
Former New York Chief Judge Judith Kaye and current United States Supreme Court Associate Judge Elena Kagan have one thing in common. Current New York Associate Judge Robert Smith and former United States Supreme Court Chief Judge William Rehnquist have the same thing in common. None of these four jurists ever served as judges before being appointed to the highest court of their state or country, respectively.
Neither did an incredible array of iconic jurists in the Unites States Supreme Court including Earl Warren who shepherded the end of racially segregated public schools in Brown v. Board of Education, Louis Brandeis who championed the right to privacy against government surveillance in Olmstead v. U.S., William O. Douglas who granted a stay of execution of Julius and Ethel Rosenberg when they were sentenced to death by a judge without consent of a jury, Lewis Powell who upheld affirmative action in Regents v. Bakke, and on the other extreme Felix Frankfurter who consistently voted against an expansive view of the court by advocating for judicial restraint.
Fast forward to 2013 in Albany and what you hear are unfounded mischaracterizations of the accomplished record of Professor Jenny Rivera and her qualifications to sit on New York’s highest court, the Court of Appeals. Prof. Rivera is a tenured law professor at CUNY Law School – one of the few Latina or Latino law professors in the country. From her vantage point in academia she studies court opinions, law trends, congressional and state legislative enactments and regulations every day. Such a focus can only enhance her view of the law – not detract from it.
Moreover, Prof. Rivera is a former litigator drawing from her experiences as an attorney at the Legal Aid Society and at the Puerto Rican Legal Defense Fund. The characterization that she has little to no practical experience or is not a litigator is also patently false. LatinoJustice PRLDEF has four decades of producing some of the best litigators in the country on complex constitutional and civil rights litigation. To conclude otherwise is an aspersion on our institution and on Prof. Rivera herself.
There can be no doubt that Prof. Rivera is enamored by the law. She embraces it, feeds it, challenges it, studies it and applies it to do exactly what Governor Cuomo said she has done for her entire career: “defend the legal rights of all New Yorkers and make our state a fairer, more just place to live."
Lawyering is much, much more than courtroom experience. And there a multitude of legal issues that go before the Court of Appeals that do not concern trial practice or evidence. Prof. Rivera knows her way around a courtroom but even if she did not, there is no simplistic litmus test for determining the qualifications of an attorney to serve on the Court of Appeals. The New York State Senate should stop trying to invent one now. It should confirm the nomination of Prof. Jenny Rivera overwhelmingly.