Monday, January 21, 2013

Jenny Rivera, Part 2: The Coming Senate Hearings

Jenny Rivera
8th Annual Latino Trendsetter Awards
The United Nations, 2009
The next step in the appointment process for Jenny Rivera, Governor Andrew Cuomo's pick for the Court of Appeals, is the Senate Judiciary Committee's consideration of her nomination.

But, to be blunt, the hearings for recent nominees have been worthless.
The New York Senate has largely abrogated its responsibility in the confirmation process.
The Judiciary Committee has utterly failed to seriously assess nominees to the state's highest court.
The constitutional "advice and consent" responsibility of the upper house of the state legislature has amounted to little more than rubber stamping the gubernatorial selection.

As some have volunteered openly--and many many more have voiced privately and off the record--the Judiciary Committee's hearings and the subsequent Senate proceedings have been a veritable waste of time.

A harsh assessment? Yes.
But, if anything, it may actually understate just how insignificant and unenlightening has been the contribution of the Judiciary Committee, as well as of the full Senate, in the process for appointing Judges to the Court of Appeals.

We've discussed this before on New York Court Watcher. We did so with the confirmation proceedings for then-nominee Jonathan Lippman. (See New York Court of Appeals: Chief Judge Lippman's Senate Confirmation and Press Reviews, Feb. 12, 2009.)

We've also had related discussions--critical for some similar and some different reasons--about the federal Supreme Court confirmation hearings for then-nominee Sonia Sotomayor. (See e.g., Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging, Jul. 20, 2009.)
Likewise about those for then-nominee Elena Kagan. (See Freeze-Dried Constitution?--The Intent of Equal Protection [continued--Q's from the Kagan Hearings, Part 6] , Jul. 22, 2010.)

[Disclosure: I think that Jonathan Lippman has proven himself to be a truly first-rate Chief and superb judge. My view is also that Sonia Sotomayor and Elena Kagan have been fine Justices--at the least, they usually vote the way I would, so I naturally think they're brilliant!
But this discussion is about the quality and value of the confirmation hearings, not about the nominees who have been subject to them.]

Some partisan political nonsense is certainly to be expected at legislative hearings. Even--or perhaps especially so--when the hearings deal with something as consequential as the membership on the highest court. Whether it be a Judge on New York's Court of Appeals or a Justice on the U.S. Supreme Court, the implications for fundamental law and policy--for the state and the nation, respectively--are enormous.

That is why it is so important, for New York as well as for federal confirmation hearings, that a nominee's qualifications and fitness for the high court be intelligently and seriously assessed by the Senate before it renders its confirmation decision.

What this requires, of course, is more than simply hearing from a nominee's friends and otherwise predisposed supporters. (Or from critics whose opposition has less to do with the nominee herself than with some other agenda.)

What this requires is inquiry of a nominee by the Senators that is more sophisticated than grade-school teaching that the legislature makes the laws, the executive enforces the laws, and the judiciary applies the laws.

What this requires is inquiry about the proper--and actual--role of the judiciary in democratic government.
And more specifically, inquiry about the proper--and actual--role of the Court of Appeals in New York government.
What is the nominee's understanding?

What this requires is inquiry about the qualities that make a good judge.
Whether, for example, there are particular Judges in Court of Appeals history that she admires and would aspire to emulate.
And most importantly, why?
[A few years ago, I asked the sitting Court of Appeals Judges that very question. The resulting symposium at Albany Law School and the Judges' picks and explanations are available at JUDGES ON JUDGES: THE NYCOA JUDGES' OWN FAVORITES IN COURT HISTORY, 71 Alb. L. Rev 1041-90 (State Const'l Comm. Issue, 2008)]

What this requires is inquiry about judicial decision-making.
Whether it's a matter of strict fidelity to the text of a statute or constitutional provision.
Whether it's a matter of determining and applying the original meaning or specific intent.
Whether it's about promoting the larger purpose or overarching principle embodied in the law at issue.
Whether it's about weighing consequences, and choosing an interpretation that insures the most sensible or fairest result.
What are the nominee's views?

Has the nominee considered these questions, or will the nominee take a seat on the Court unaware of the realities of judging on a court of last resort?
Unaware that decision-making on a high court typically involves making choices among the foregoing approaches, and among results that are not dictated--even when done by the Judge without acknowledgement or even unconsciously.
[Borrowing again here from Holmes and Cardozo, as well as countless other serious students of the judicial process.]

It matters less the Senators' particular queries of the nominee, and the nominee's particular responses. What is critical in a confirmation process is that there be a serious, substantive evaluation of the nominee. For example, that the process moves beyond the "testimony" of friends. You know: "Oh, the nominee is smart and wonderful and will make a great Judge." Yes, fine, thank you.

What is also critical is that the Senators' questions of the nominee get beyond the partisan political nonsense that usually takes the form of "activism versus restraint." That's almost always a pretty transparent cover for discussion about politically charged decisions that a Senator does or does not like--because of the Senator's own political or ideological (not judicial) reasons, of course.

What is critical is that the Senators require the nominee to respond directly, honestly, and intelligently to questions that are relevant and realistic. Sure, a nominee should not be asked how she would vote in a particular case that might come before the Court--and she shouldn't answer if asked.

But a nominee can--and should--certainly be asked her views about the proper way for judges to approach decision-making, the considerations to be weighed in resolving vital issues of the day and in the past--general and specific--and about the role, reality and limits on judicial policymaking. Yes, judicial policymaking.

And the nominee can--and should--certainly be asked about the background, experience, perspective, and values that she will bring to bear on her judicial decision-making. All judges, of course, do that. Both because they are human, and because it is a necessary and inevitable ingredient in judging. We all know it.
[Yes, you know by now, Holmes and Cardozo and Posner and every great judge and every serious observer of the judiciary knows that and takes that for granted.]

Only blind partisans and those ignorant of judicial decision-making deny it, or feign shock that any judge would do it. We've witnessed that at confirmation hearings for the U.S. Supreme Court.

Unfortunately, what we've also witnessed are nominees who robotically respond:
[E.g., we heard that obviously scripted response repeatedly from now-Justice Sotomayor at her hearings.]

Come on, we all know that is the purest nonsense. A nominee should not be permitted get away with such balderdash.
[Hmm, not sure I've ever used that term before. But it fits here!]

Well, the New York State Senate must exercise its "advice and consent," and make its decision on the confirmation of Jenny Rivera within 30 days of January 15--the day Governor Cuomo nominated her. That's February 13, if I've counted correctly. Prior to that date, the Senate Judiciary Committee will hold its hearings.

Hopefully the Senators will conduct a full and intelligent and meaningful examination of Rivera, her qualifications, fitness, and other relevant matters. Hopefully too, she will prove herself worthy of the Nominating Commission's and Cuomo's high assessment of her. And finally, hopefully, she will then prove herself to be an exceptional Judge in the proud and distinguished tradition of our--i.e., New Yorkers'--high court.