Monday, February 4, 2013

The Rivera Hearings: The Committee & The Nominee Prove Themselves

Well, there was a hearing today.
A real hearing.
A hearing worthy of New York's Senate Judiciary Committee, as well as of the Court of Appeals, the state's highest court, to which Jenny Rivera has been nominated.

This is a big change for a committee which in the past has largely been a rubber stamp for gubernatorial picks.
This is a big change for a committee whose prior hearing have typically been an embarrassing waste of time.
[I've commented, admittedly harshly, about the Committee hearings in the past; see New York Court of Appeals: Chief Judge Lippman's Senate Confirmation and Press Reviews, Feb. 12, 2009; Jenny Rivera, Part 2: The Coming Senate Hearings, Jan. 21, 2013.]

The questions at today's hearing were challenging, relevant, important, and necessary.
Questions about Professor Rivera's background, her professional experience, her academic scholarship and teaching, and her passionate concerns.
Questions about how all that might influence her judging on the Court of Appeals.
Questions about the role of the Court of Appeals itself.
Questions about her readiness and fitness to be a Judge on the high court.
Questions about her understanding of the role of that court and its Judges in the democratic governance of the state.

These questions, mostly asked by Republicans on the Committee, required Rivera to prove herself.
Senators such as the Chair, John Bonacic, as well as John DeFrancisco and John Flanagan, were obviously intent to have a meaningful, probing, substantive hearing.
And they had one.

Democratic Senators mostly lobbed softballs at the nominee.
That's to be expected; that's fair enough.
The Dems, no doubt, have far fewer concerns about the kind of Court of Appeals Judge that Rivera is likely--as in very likely--to be.
An ideological liberal.
Equal protection for minorities; employees' rights; women's rights; education rights; rights of the accused; etc.
Rivera will likely--again very likely--vote as a Judge the way the Dems would prefer.

The Republican Senators would surely behave that way, going easy on the nominee, if she were a conservative Republican who would likely vote the way they would prefer.
But today they were questioning Rivera, and their questions showed their perfectly understandable concerns about her sitting on our court of last resort.

And to be sure, their questions were tough.
But they were also entirely legitimate and extremely pertinent.
Indeed, it's about time the Committee took its constitutional "advice and consent" responsibility seriously.

In my humble view at least, the Committee is to be commended.
Highly commended for changing what these hearings have usually been.
Little more than congratulatory sessions, ending with an inevitable approval of whomever the current governor might choose to nominate.
Hopefully, that is now in the past.

And speaking of the past, it's certainly not clear how well previous nominees would have fared if they had faced a hearing like today's.
Not at all clear how previous gubernatorial picks for the Court of Appeals would have performed if confronted by the kind of grilling that Jenny Rivera endured today.

Ask any serious court watcher--off the record, of course--how well they think other nominees would have done if they were tested by the intensity of questioning directed at Professor Rivera today.
Sure, some would have done well. Even very well.

But how many would have done so?
How many of them would have proven themselves--as I think Rivera proved herself today?

She spoke beautifully--with intelligence, understanding, and passion for critical legal and sociological issues.
She may not have satisfied some of the more politically conservative Senators that she would approach legal questions the way they think is best.
Or decide cases the way they would.
I.e., resolve issues the way a more conservative, traditionalist judge might.

But there could be little doubt after today's hearing--if there was doubt before--that Jenny Rivera is an impressive nominee.
Highly articulate, knowledgeable, capable, just plain smart, and very decent and human.
I fully expect--and would be very pleased to be correct about this--that she would employ a similarly compassionate jurisprudence as was the hallmark of the Judge she was nominated to replace, Judge Carmen Ciparick.

She seems a very fitting successor to Ciparick.
Yes Puerto Rican, and yes a woman.
And we need not be so naive or so timid as to deny that those were major factors in Rivera's nomination.

But more than that, she seems so fitting a successor to Ciparick because she seems so similarly decent, human, compassionate, and so dedicated to fairness and justice in the law.
Yes that, on top of proving herself to be the equal of the toughest, smartest questions asked by the Senators today.

So the Judiciary Committee and Professor Rivera deserve congratulations and gratitude for a meaningful, substantive, enlightening hearing.

The Committee is in recess until tomorrow (Tuesday) morning. The vote is scheduled to take place at that time.

It was not clear from today's hearing--at least not to me--how the various Senators will vote.
I suspect she'll be approved by the Committee and then by the Senate as a whole.
[I hope she will. I would certainly vote for her.]