Regular Session - February 11, 2013

                                                                   451

 1               NEW YORK STATE SENATE

 2                          

 3                          

 4              THE STENOGRAPHIC RECORD

 5                          

 6                          

 7                          

 8                          

 9                  ALBANY, NEW YORK

10                 February 11, 2013

11                     3:49 p.m.

12                          

13                          

14                  REGULAR SESSION

15  

16  

17  

18  SENATOR JOSEPH A. GRIFFO, Acting President

19  FRANCIS W. PATIENCE, Secretary

20  

21  

22  

23  

24  

25  


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 1               P R O C E E D I N G S

 2                ACTING PRESIDENT GRIFFO:   The 

 3   Senate will come to order.  

 4                I ask all present to please rise 

 5   and join with me as we recite the Pledge of 

 6   Allegiance to our Flag.

 7                (Whereupon, the assemblage recited 

 8   the Pledge of Allegiance to the Flag.)

 9                ACTING PRESIDENT GRIFFO:   Today's 

10   invocation will be offered by the Reverend Peter 

11   G. Young, of the Mother Teresa Community here in 

12   Albany.  

13                Father Young.

14                REVEREND YOUNG:   Thank you.  

15                Let us pray.  

16                O God, we pray for our New York 

17   State citizens, for their dignity of a receiving 

18   a paycheck to overcome homelessness and hunger.  

19                We ask that our Senate leadership 

20   give our citizens peace of mind and renewed 

21   faith in a strong economy that provides the 

22   needy job opportunities.  

23                Protect us from the violence of 

24   others, and keep us safe from the weapons of 

25   hate.  Free the bound people who are caught by 


                                                               453

 1   the chains of addiction, to encourage them with 

 2   their struggle to recover to productive 

 3   lifestyles as an example of hope to others.  

 4                We ask You this through Your 

 5   goodness.  Amen.

 6                ACTING PRESIDENT GRIFFO:  Thank 

 7   you, Father.  

 8                The reading of the Journal.

 9                THE SECRETARY:  In Senate, Friday, 

10   February 8th, the Senate met pursuant to 

11   adjournment.  The Journal of Thursday, 

12   February 7th, was read and approved.  On motion, 

13   Senate adjourned.

14                ACTING PRESIDENT GRIFFO:   Without 

15   objection, the Journal stands approved as read.

16                Presentation of petitions.

17                Messages from the Assembly.

18                Messages from the Governor.

19                Reports of standing committees.  

20                Reports of select committees.  

21                Communications and reports from 

22   state officers.

23                Motions and resolutions.

24                Senator Libous.

25                SENATOR LIBOUS:   Mr. President, 


                                                               454

 1   before we do the report from the Judiciary 

 2   Committee, could members enter the chamber and 

 3   take their seats.  Could I ask the 

 4   Sergeant-at-Arms to make sure that the doors are 

 5   secure and that we can begin this process in a 

 6   quiet and orderly manner.  

 7                So, Mr. President, I believe there 

 8   is a report from the Judiciary Committee at the 

 9   desk.

10                ACTING PRESIDENT GRIFFO:   Thank 

11   you, Senator Libous.  

12                I would ask the members to please 

13   take their desks, staff to please find suitable 

14   quarters, and the Sergeant-at-Arms to have the 

15   doors closed.

16                Returning to reports of standing 

17   committees, the Secretary will read the report 

18   of the Judiciary Committee.

19                THE SECRETARY:   Senator Bonacic, 

20   from the Committee on Judiciary, reports the 

21   following nomination:  

22                Jenny Rivera, of the Bronx, as a 

23   judge of the New York State Court of Appeals.

24                ACTING PRESIDENT GRIFFO:   Senator 

25   Bonacic.


                                                               455

 1                SENATOR BONACIC:   Thank you, 

 2   Mr. President.  

 3                Last week the Judiciary Committee 

 4   met and considered the nomination of Jenny Rivera 

 5   as a judge of the Court of Appeals for a term 

 6   commencing January 15, 2013, and expiring January 

 7   14, 2027.  

 8                Professor Rivera is with us today in 

 9   the gallery.  Professor Rivera is joined in the 

10   gallery by Audie Serrano, her domestic partner, 

11   as well as her close family, friends and some of 

12   her colleagues from CUNY School of Law.  

13                She is a resident of the Bronx, and 

14   she's in Senator Klein's district.  

15                Pursuant to the provisions of 

16   Section 2 of Article 6 of the Constitution and 

17   the provisions of Section 68 of the 

18   Judiciary Law, the Judiciary Committee has 

19   reported the nomination without recommendation to 

20   the floor.  

21                I now ask that you recognize Senator 

22   Klein.  

23                ACTING PRESIDENT GRIFFO:   Senator 

24   Klein.

25                SENATOR KLEIN:   Thank you, 


                                                               456

 1   Mr. President.  

 2                It is truly an honor for me to rise 

 3   today to nominate Jenny Rivera of the Bronx to 

 4   fill a term commencing on January 15, 2013, and 

 5   expiring on January 14, 2027, as judge of the 

 6   Court of Appeals.

 7                Several years ago many of us stood 

 8   on this floor and we spoke about the nomination 

 9   at that time of Judge Jonathan Lippman, who at 

10   that time was being elevated to chief judge of 

11   the Court of Appeals.  Sometimes it got 

12   contentious.  A lot of times people questioned 

13   whether or not he was the right appointment to be 

14   elevated to be chief judge or the Court of 

15   Appeals.  

16                But at that time I rose and spoke on 

17   behalf of Judge Lippman, citing his experience 

18   but most of all citing the fact that he was a 

19   product of New York, grew up on the Lower East 

20   Side.  And I said then here was somebody who was 

21   born of immigrant parents, grew up on the 

22   Lower East Side, which is truly a melting pot, as 

23   everyone notion.  And at that time he probably 

24   would only dream of becoming a lawyer, let alone 

25   someday being elevated to chief judge of the 


                                                               457

 1   Court of Appeals.

 2                Well, I said then and I say it again 

 3   now that I think with Jenny Rivera's nomination 

 4   today what we're seeing, first and foremost, is 

 5   that that dream -- that dream of someone growing 

 6   up in New York, growing up on the Lower East 

 7   Side, spending their lives planning to be 

 8   elevated to be a judge -- is alive and well in 

 9   New York today.

10                Jenny Rivera comes to us in a very 

11   different way.  She wasn't trained to be a 

12   Wall Street lawyer.  She wasn't trained to join 

13   one of those white-shoe law firms.  She was 

14   trained as a public woman, somebody who has 

15   dedicated her life to public service, someone who 

16   each and every day gets up in the morning with a 

17   singular purpose, to make a positive difference 

18   in people's lives.

19                Her background is quite impressive 

20   in the public service:  A pro se law clerk in the 

21   Second Circuit Court of Appeals, associate 

22   counsel at the Puerto Rican Legal Defense and 

23   Education Fund, administrative law judge for the 

24   New York State Division of Human Rights, 

25   commissioner on the New York City Commission on 


                                                               458

 1   Human Rights, law clerk to the U.S. District 

 2   Court Judge, now Supreme Court Judge Sonia 

 3   Sotomayor, Special Deputy Attorney General for 

 4   Civil Rights and the chief of the Civil Rights 

 5   Bureau in the State Attorney General's office.  

 6                She's someone who clearly, 

 7   throughout her career, planned to be in this very 

 8   place -- but in a different way, as I said, 

 9   dedicated to public service.

10                I do also want to say a word about 

11   her most recent position.  As many of you may 

12   know, Jenny Rivera is a professor at CUNY Law 

13   School, the City University Law School in 

14   New York, where she is the director of the Center 

15   of Latino and Latina Rights and Equality.  

16                That means something to me, because 

17   I graduated from CUNY Law School.  And I chose 

18   the law school for probably the same reason that 

19   Jenny Rivera chose to teach there.  First of all, 

20   it trains lawyers to be in the public service.  

21   That's their singular goal.  That's their 

22   singular purpose.  It trains individuals to 

23   pursue a career in public service.  You're 

24   encouraged, when you go to CUNY Law School, to 

25   bring your experience in the real world.  That's 


                                                               459

 1   why many of the students go there later in life, 

 2   in many cases after a distinguished career in 

 3   public service.  

 4                It also has the distinction of 

 5   graduating more women and minorities than any 

 6   law school in the State of New York.  It's open 

 7   to all.  It's affordable.  

 8                As I said, it takes a very special 

 9   person to graduate from that school, and it 

10   certainly takes a very special person to teach 

11   those law students each and every day.  That's 

12   something that's very, very important, and I 

13   think that's going to serve Jenny well when she's 

14   a judge of the Court of Appeals.

15                I think we also have to acknowledge 

16   that Jenny's presence here today is a testament 

17   to our commitment in New York State to ensure 

18   that our courts are a reflection of the people 

19   they serve.  We cannot expect to have a fair 

20   judicial system in all its aspects of expression 

21   without it representing the full scope and 

22   spectrum of our citizens.  

23                History has also shown us that while 

24   we may have different areas of experience and 

25   accomplishment, we only advance as a community 


                                                               460

 1   and a state and a nation by supporting each 

 2   other.  We may come from different cultures, but 

 3   make no mistake:  We share a human bond and we 

 4   are collectively responsible for one another.  

 5   Growing up in the Bronx taught me something very 

 6   simple.  When you lift up your friend, you lift 

 7   yourself up as well.  

 8                What makes this country a beacon for 

 9   all others around the globe that we honor each 

10   other's chosen path to success.  In this country, 

11   and especially here in New York State, success is 

12   found through dedication, perseverance, courage 

13   and commitment to one's chosen field.  I think 

14   the old adage or the old proverb proves true:  

15   All roads lead to Rome.  

16                It is in that spirit that I stand 

17   here today and proudly and wholeheartedly support 

18   the nomination of Jenny Rivera to serve on the 

19   New York State Court of Appeals.  Jenny Rivera is 

20   a fine legal mind, and I am completely confident 

21   that New Yorkers who come before her bench will 

22   know one certain truth:  Justice will be served.

23                Thank you, Mr. President.

24                ACTING PRESIDENT GRIFFO:   Thank 

25   you, Senator Klein.


                                                               461

 1                Senator Bonacic.

 2                SENATOR BONACIC:   Thank you, 

 3   Mr. President.

 4                I believe the Court of Appeals 

 5   appointment is one of the most important 

 6   positions in New York State government.  The 

 7   decisions of the Court of Appeals affect millions 

 8   of New Yorkers for generations to come.  I 

 9   believe the executive and legislative branches 

10   have a duty to see that the best, the brightest 

11   and the most qualified person is appointed to the 

12   highest court.

13                Since I have served on the Senate 

14   Judiciary Committee, I've had the responsibility 

15   to vote for eight nominees to the Court of 

16   Appeals.  I voted yes all eight times.  Four were 

17   women.  One was Hispanic.  One was 

18   African-American.  And three were like me, but 

19   only smarter and more handsome.

20                The nominee has a very limited law 

21   practice experience.  She has been a law 

22   professor most of her life.  She served as a law 

23   clerk one year with Judge Sotomayor back in 1993 

24   and one and a half years with the Attorney 

25   General, then Andrew Cuomo, and that was in 


                                                               462

 1   2007-2008.  Those experiences, in my judgment, 

 2   were more administrative law than the practice of 

 3   law in the trenches with a variety of different 

 4   areas.

 5                I have every reason to believe that 

 6   this nominee is smart, is passionate about the 

 7   areas of the law that will interest her, and is a 

 8   good professor.  

 9                I have spent considerable time 

10   studying her writings, and I have to tell you, I 

11   find her writings to be confusing and unclear and 

12   overwhelmingly not reflective of the number of 

13   cases or subject matters which come before a 

14   Court of Appeals judge.

15                I have concerns, if she were to be 

16   confirmed, that she would be prone to judicial 

17   activism rather than apply the statute before 

18   her.  I also have concerns that it would be very 

19   difficult for her to be objective in all issues, 

20   given her passion in a limited area of law.

21                Academia is a perfect honorable 

22   profession.  I have three academics at the 

23   high school or college level in my immediate 

24   family.  But taking someone from academia and 

25   appointing them to the Court of Appeals -- or the 


                                                               463

 1   Supreme Court, where they could get the training, 

 2   I would be voting for this nominee.  But you're 

 3   asking, this Governor is asking this body to make 

 4   a leap from the academic world right to the 

 5   highest court in the State of New York.

 6                Some have made the argument that 

 7   this nominee will bring a different perspective 

 8   and think outside the box.  If you want someone 

 9   on the court with a different perspective, one 

10   could choose an athlete with a law degree, choose 

11   a CEO of a corporation with a law degree, choose 

12   a hedge fund manager with a law degree.  They 

13   would bring different perspectives, but not 

14   necessarily the perspective that's needed for a 

15   Court of Appeals judge.

16                I don't want a particular 

17   perspective on the bench.  There is a place for 

18   perspective; it is here in the Legislature.  And 

19   I submit that this body makes laws.  That's the 

20   place for it to be.

21                Maybe Governor Cuomo felt this 

22   nominee was the very best of the seven that he 

23   has given us.  I hope he did.  I don't 

24   understand, you know, how he thinks.  But he's 

25   the Governor, he's above my pay grade, he's 


                                                               464

 1   smarter than I am, and I'm here.

 2                Maybe the belief is that the three 

 3   Appellate Division judges what were passed over 

 4   were somehow less qualified than the nominee we 

 5   have.  I have said that in my view, governors 

 6   engage in social engineering when it comes to 

 7   judicial nominations.  Some have disagreed with 

 8   me.  Maybe it was just a coincidence and not 

 9   social engineering that the first Latina judge on 

10   our state's highest court is being replaced by 

11   the second Latina judge on our state's highest 

12   court.

13                If you are to believe that there is 

14   no social engineering in judicial picks and it is 

15   qualifications and only qualifications that 

16   matter, then you must believe that this nominee 

17   is better than three appellate judges, each of 

18   whom have been elected by the people and elevated 

19   by a governor to the Appellate Division.

20                You must believe that the nominee is 

21   more qualified than two active trial attorneys, 

22   partners who have litigated and not just 

23   consulted with major matters such as RICO claims, 

24   fair labor law, health insurance litigation, 

25   contract interpretation, religious discrimination 


                                                               465

 1   claims, claims over education disputes for 

 2   students with special needs, real estate 

 3   litigation, local law compliance, allocation of 

 4   payment in lieu of taxes agreement, a 

 5   Harlan Fiske Stone scholar and a person who was 

 6   appointed by two different mayors to serve on 

 7   commissions as broadly different as planning and 

 8   police corruption, who have served on task forces 

 9   for two chief justices.  And that, my colleagues, 

10   is just one resume of one candidate that was 

11   passed over.

12                To make this confirmation about 

13   one's ethnic background, though, instead of 

14   qualifications  demeans the great Court of 

15   Appeals that our state has always had.  

16                Those passed over include Rolando 

17   Acosta, a sitting judge of the Appellate 

18   Division.  Judge Acosta is an Hispanic-American 

19   who is deemed to have the highest qualifications 

20   and has written numerous reported decisions.  

21                Judge Eugene Fahey, a highly 

22   qualified and highly recommended justice of the 

23   Appellate Division.  

24                Kathy Chin, a seasoned litigator who 

25   happens to also be Asian-American and would have 


                                                               466

 1   been the first Asian-American on the court.  It 

 2   was her resume I read to you about the RICO 

 3   statutes and all the things she has been involved 

 4   in.

 5                Sheila Abdus-Salaam, whose name I 

 6   undoubtedly just was not kind to, but who is a 

 7   justice of the Appellate Division who had been 

 8   elected to the State Supreme Court.  If 

 9   nominated, according to Reuters news service, she 

10   would have been the first African-American woman 

11   on the Court of Appeals.

12                David Schulz, a highly experienced 

13   litigator in New York City.  According to the Law 

14   Journal, Mr. Schulz would have been the first 

15   openly gay member of the court.  

16                Now, these individuals, based on 

17   their ethnic background or personal 

18   characteristics, might have been historic.  But 

19   shame on us if we demean them by stating their 

20   race, gender, or sexual orientation is what 

21   defines them.  It is their qualifications that 

22   define them.  

23                However -- and I mean this with all 

24   due respect to this nominee -- to put someone who 

25   has such narrow legal experience on the highest 


                                                               467

 1   court of this state for 14 years -- and possibly 

 2   18 years, if the law blesses her with a long and 

 3   healthy life -- and to pass over those highly 

 4   qualified nominees is not something that I can 

 5   support.

 6                Thank you, Mr. President.

 7                ACTING PRESIDENT GRIFFO:   Senator 

 8   Espaillat.

 9                SENATOR ESPAILLAT:   Professor Jenny 

10   Rivera was nominated by Governor Andrew Cuomo to 

11   succeed Carmen Beauchamp Ciparick to serve in the 

12   New York State Court of Appeals.  If confirmed 

13   here today, she will be the second Hispanic woman 

14   to sit on such court.  

15                The Governor selected Rivera, as was 

16   said by my colleague before me, among seven 

17   candidates found well-qualified by the Commission 

18   on Judicial Nomination, a panel with members 

19   appointed by the Governor, the Legislature, and 

20   the Chief Judge.  

21                The commission, chaired by 

22   Chief Judge Judith Kaye, conducted extensive 

23   outreach in seeking applicants and its efforts 

24   resulted in the highest number of applications 

25   ever:  75, the most women applicants ever, and 


                                                               468

 1   24, the most minority applicants ever.

 2                Ms. Rivera earned her undergraduate 

 3   degree from Princeton University, her J.D. from 

 4   New York University School of Law, and her L.L.M. 

 5   from Columbia University School of Law, 

 6   concentrating on constitutional theory.  

 7                Ms. Rivera is a member of the 

 8   New York State Bar Association and is admitted to 

 9   practice in the Supreme Court of the United 

10   States, the Third Circuit Court of Appeals, and 

11   the District Courts for the Southern and Eastern 

12   Districts of New York.  

13                Currently she is a professor of law 

14   at the City University School of Law, CUNY.  She 

15   is also the founder and director of the 

16   Law School Center on Latino and Latina Rights and 

17   Equality, which promotes law reform scholarship, 

18   public education, and litigation relating to 

19   civil rights issues facing the Latino community.  

20                She has previously served as a 

21   visiting professor at the American University and 

22   Suffolk University Schools of Law.  

23                She also currently serves as a 

24   member of the Second Department Judicial 

25   Screening Committee, which helps to screen 


                                                               469

 1   applicants for judicial positions.  

 2                Prior to her time at CUNY, Professor 

 3   Rivera served as an administrative law judge on 

 4   the New York State Division of Human Rights.  In 

 5   1993, she clerked for then District Court and now 

 6   Supreme Court Justice Sonia Sotomayor.  

 7   Ms. Rivera also previously clerked in the Second 

 8   Circuit of Appeals Pro Se Law Clerk's Office.  

 9   She also worked as a lawyer for the Legal Aid 

10   Society's Homeless Family Rights Project and as 

11   an associate counsel for the Puerto Rican Legal 

12   Defense and Education Fund.

13                From 2002 to 2007, Ms. Rivera served 

14   as a commissioner on the New York City Commission 

15   on Human Rights.  In 2007, she worked as a 

16   Special Deputy Attorney General for Civil Rights 

17   under then New York State Attorney General 

18   Andrew Cuomo.  

19                My colleagues, Professor Rivera is 

20   profoundly qualified.  She may not be a litigator 

21   in a white-shoe law firm on Wall Street, but she 

22   is highly qualified to feel the needs and to 

23   interpret the law for millions and millions of 

24   New Yorkers that may not be as lucky as to work 

25   in a white-shoe law firm on Wall Street.


                                                               470

 1                Professor Rivera is clearly 

 2   committed to public service.  Her work assisting 

 3   the homeless and safeguarding low-income families 

 4   from eviction and discrimination speaks in a very 

 5   eloquent way, but it proves also the depth of her 

 6   character.  She could have easily chosen to earn 

 7   more in the private sector, but she chose a 

 8   harder path as a scholar and an advocate.  

 9                She is a legal scholar, someone that 

10   will bring a fresh and new view of the law while 

11   constructing the law within its parameters to the 

12   highest court of this state.

13                As a legal scholar, Professor Rivera 

14   illustrated a deep understanding of the law and 

15   her experience while she clerked under now 

16   Supreme Court Justice Sonia Sotomayor.  There she 

17   reviewed decisions, motions, and she did most of 

18   the lawyering work that many across the aisle 

19   fail to acknowledge her to have the experience 

20   of.

21                I am proud to stand here with the 

22   New York State Bar Association, with groups from 

23   the diverse Latino community, including Latino 

24   Justice, the Puerto Rican Bar Association, the 

25   Dominican Bar Association, the National 


                                                               471

 1   Organization for Women, and many others.  Can 

 2   they all be wrong?  Can they all be wrong that 

 3   she is qualified?  She is highly qualified, and 

 4   I'm here to support her nomination.  

 5                Professor Rivera's opponents may be 

 6   stalling her nomination for political purposes, 

 7   but the Court of Appeals presides on those issues 

 8   that affect millions of New Yorkers.  We need her 

 9   intellect, judgment, and experience on the bench 

10   immediately.

11                Thank you, Mr. President.

12                ACTING PRESIDENT GRIFFO:   Senator 

13   Rivera.  Senator Rivera.

14                SENATOR RIVERA:  Rivera?

15                ACTING PRESIDENT GRIFFO:   Rivera.

16                (Laughter.)

17                SENATOR RIVERA:   Thank you, 

18   Mr. President.  

19                Colleagues, I stand here today -- 

20   first of all, Professor Rivera, I welcome you to 

21   our chamber, I welcome you and your family and 

22   your colleagues.  And I stand today to proudly 

23   support this nomination, to thank the Governor 

24   for his choice for this supremely qualified 

25   person.  


                                                               472

 1                And I would say to my colleagues 

 2   that I have a very deep, deep disagreement with 

 3   you.  When you say that you want, that we want 

 4   the best, the brightest and most qualified:  

 5   There she is.  

 6                I would say that as a Bronx 

 7   resident, to me, that's what I call frosting on 

 8   the cake.  The fact that she is as supremely 

 9   qualified as she is and, on top of that, that she 

10   is in our wonderful borough, I'm very, very happy 

11   about that.  And I think that she will be a 

12   valuable addition to the Court of Appeals of the 

13   State of New York.

14                I do not believe, as my colleague 

15   stated, that the Governor is practicing social 

16   engineering.  What I think the Governor is doing 

17   is he wants to make sure that we have a court 

18   that looks like the State of New York.

19                And actually I have a bit of trivia 

20   for my colleagues.  What do Chief Judge Judith 

21   Kaye and Elena Kagan, who is now in the 

22   Supreme Court, have in common with Jenny Rivera?  

23   And if you can't guess, I'll give you a little 

24   bit more of a clue.  What do these three women 

25   have in common with Robert Smith, who is also in 


                                                               473

 1   the Court of Appeals?  How about William 

 2   Rehnquist?  Earl Warren?  Louis Brandeis?  

 3   Felix Frankfurter?  

 4                Any and all of these folks who have 

 5   served with great distinction either in the 

 6   Court of Appeals or in the Supreme Court of the 

 7   United States, none of these folks had judicial 

 8   experience before they were nominated to either 

 9   of these courts.

10                So what we have before us is someone 

11   that I can only hope will give us the same type 

12   of decisions, decisions that will certainly 

13   impact millions of New Yorkers for years to 

14   come.  Somebody who will bring her wide 

15   experience, her broad experience, her diverse 

16   experience into better understanding of the law 

17   for the State of New York.

18                I proudly stand here in support of 

19   this nomination and ask my colleagues to do the 

20   same.  

21                Thank you, Mr. President.

22                ACTING PRESIDENT GRIFFO:   Senator 

23   Breslin.

24                SENATOR BRESLIN:   Thank you, 

25   Mr. President.  


                                                               474

 1                I stand here as a member of the 

 2   Judiciary Committee, a member for over 16 years.  

 3   And I firmly believe that this candidate received 

 4   more scrutiny, more review, than any candidate I 

 5   have seen in those 16 years.  And it is my 

 6   conclusion that she passed every test in a 

 7   tremendous way.  

 8                You know, we've heard repeated and 

 9   repeated that coming from Puerto Rico, Hispanic 

10   parents, going to I believe St. Michael's 

11   School -- we never, no other candidates got back 

12   into the grade and high schools -- on to 

13   Princeton, to NYU, to Columbia for a master's, 

14   nine years of practice, years as a professor at 

15   CUNY, two other stints as a visiting professor 

16   elsewhere, a commissioner of human rights for the 

17   City of New York appointed by Mayor Bloomberg, 

18   working for the Attorney General in the Civil 

19   Rights Division, supervising lawyers, an 

20   administrative law judge, a clerk to Sonia 

21   Sotomayor, and on and on and on.  

22                And then, the culmination of that, 

23   over five hours of testimony before our Judiciary 

24   Committee.  That's when I really saw a 

25   performance, a performance of professionalism, a 


                                                               475

 1   performance of, as I referred to it then at the 

 2   Judiciary Committee, the patience of Job, to 

 3   endure repetitive questions over and over and 

 4   over, where I came to the conclusion that I have 

 5   not seen someone with the kind of full and total 

 6   background of human life experiences, of 

 7   education, professional experiences, who is more 

 8   qualified for the Court of Appeals.

 9                And I believe that we will look back 

10   at this day as one of the most wonderful days, 

11   because I think that Jenny Rivera will prove to 

12   be one of the greatest of our Court of Appeals 

13   judges.  And I am very proud to say that this 

14   may be the best decision I've made in my 16 years 

15   on the Judiciary Committee by fully supporting 

16   the candidacy of Jenny Rivera for the Court of 

17   Appeals.  

18                Thank you, Mr. President.

19                ACTING PRESIDENT GRIFFO:   Thank 

20   you, Senator Breslin.

21                Senator Perkins.  

22                SENATOR PERKINS:   Thank you very 

23   much for this opportunity.

24                I first want to take a moment to 

25   acknowledge someone that is near and dear to me 


                                                               476

 1   who joins us today, and we served together in the 

 2   City Council, Councilmember Bob Jackson.  I just 

 3   want to recognize that he's here with us.  In 

 4   fact, he sits with Jenny Rivera, and wanted to 

 5   make sure that he was here during this historic 

 6   moment in her support.

 7                He also happens to be a part of a 

 8   group of crazy guys that run around doing 

 9   marathons in New York City.

10                But you know, there's this notion of 

11   the old boys' network that keeps coming up in 

12   these discussions.  Which I'm concerned about 

13   because, you know, it comes up -- I mean, social 

14   engineering, which for me is another term for the 

15   old boys' network.  You know, and nobody seems to 

16   have had a concern about that.  

17                And I recently received a letter 

18   from a friend of mine from the old boys' network, 

19   someone who I attended school with at 

20   Brown University, sort of the breeding ground of 

21   that network.  And he sent me a letter in support 

22   of Ms. Rivera.  

23                I'm not going to read it all, but I 

24   just wanted to sort of bring forward the summary, 

25   the concluding sentence.  And he says:  "Jenny 


                                                               477

 1   Rivera would bring to the Court of Appeals her 

 2   keen intellect, insightful legal scholarship, and 

 3   a commitment to equal justice for all 

 4   New Yorkers.  We believe that her overall 

 5   experience will serve the State of New York well 

 6   as associate judge."  

 7                This individual happens to be the 

 8   president of the New York State Bar Association, 

 9   Seymour W. James, Jr.

10                So it would seem to me that if 

11   someone of such outstanding legal experience and 

12   background -- similar to that which many of you 

13   who object to her have -- could find her so 

14   well-qualified, then I can't disagree.  And I 

15   can't imagine why anybody else would disagree, 

16   except for the fact that perhaps she's not from 

17   the old boys' network.  And that's the type of 

18   social engineering that we can't accept.  

19                So I just wanted to make sure that I 

20   stood in support of her and would hope that my 

21   colleagues do the same.

22                ACTING PRESIDENT GRIFFO:   Senator 

23   Smith.

24                SENATOR SMITH:   Thank you very 

25   much, Mr. President.  


                                                               478

 1                And thank you, colleagues, thank 

 2   you, Senator Klein, for the nomination of 

 3   Jenny Rivera.  And I thank all my colleagues who 

 4   have spoken before me, and so eloquently, in 

 5   terms of her background.  

 6                In particular, Senator Gustavo 

 7   Rivera went through a litany of justices that 

 8   have been on the bench and served with 

 9   distinction that had no prior bench experience.  

10   And while I believe you heard him, I just want to 

11   underscore those names again because of the level 

12   of prominence they've reached in the legal 

13   profession.  

14                We all know about Justice Earl 

15   Warren, we know what bench he sat on all.  We 

16   know about William Rehnquist -- probably one of 

17   the major forefathers and authors of legal 

18   precedence that many of you have followed and 

19   used cases and decisions to determine your legal 

20   argument -- as well as the person who served as 

21   chief judge, Judith Kaye, who was very near and 

22   dear to so many of us.  None of which served on 

23   the bench prior to being on that high court.

24                But you know, more importantly, I 

25   had a quick moment this weekend -- and I'm just 


                                                               479

 1   bringing in my little life experience -- and you 

 2   know we had bad weather.  I was down shoveling 

 3   snow and did my neighbors' and everything else.  

 4   So after I was all said and done, I didn't have 

 5   nothing to do, I didn't go out to do any 

 6   political work because there was a lot of snow 

 7   and stuff, nobody was meeting.  So I watched a 

 8   movie.  

 9                And after I saw this movie -- I'm 

10   not going to get into what it was -- but what 

11   happened during the movie is an individual went 

12   through a tremendous amount of ordeal in pursuit 

13   of what they thought was their career and what 

14   should happen toward the pinnacle of it.  And as 

15   they went through all these trials and 

16   tribulations, I thought about the hearings, I 

17   thought about some other stuff.  And there was 

18   one profound statement that was made, I guess 

19   somewhat in the middle of the movie and at the 

20   end, and it was a simple three words.  It said 

21   "It is time."  

22                So I say that to my colleagues 

23   today:  It is time.  Jenny Rivera, clearly -- 

24   someone who graduated from Princeton, NYU, 

25   Columbia -- it is time.  Somebody who clerked for 


                                                               480

 1   Sonia Sotomayor, somebody who's a professor at 

 2   CUNY Law School, served as Deputy Attorney 

 3   General for Civil Rights, my colleagues, it is 

 4   time.  Someone who also has the distinction of 

 5   understanding the relationship and the nexus 

 6   between the legal profession and common law in 

 7   everyday existence.  My colleagues, it is time.

 8                So I'm honored to stand here today, 

 9   Judge Rivera, if I can be so presumptuous, and 

10   thank you for your willingness to serve on this 

11   bench, which is not an easy thing to do.  The 

12   decisions that you will face are very critical 

13   and they will dictate the future of this state.  

14                But I say to the Governor, I say to 

15   Senator Klein, to Senator Bonacic, you're doing 

16   the right thing today, because it is time.

17                Thank you, Mr. President.

18                ACTING PRESIDENT GRIFFO:   Thank 

19   you, Senator Smith.

20                Senator Krueger.

21                SENATOR KRUEGER:   Thank you, 

22   Mr. President.

23                So my colleagues have gone over in 

24   broad detail the incredible qualifications of 

25   Professor Rivera.  And I actually as a politician 


                                                               481

 1   usually explain that I don't get involved with 

 2   endorsing people for judge.  What do I know about 

 3   being a judge?  I'm not even a lawyer.  

 4                But I have gotten letters and calls 

 5   from almost everyone you can imagine who 

 6   represents different fields of law -- private law 

 7   firms, corporation counsel, deputy mayors, 

 8   organizations who in fact specialize in 

 9   evaluating judges.  So I have no questions about 

10   Professor Rivera's qualifications.  

11                So I just wanted to stand up and say 

12   I know Professor Rivera from when she was 

13   starting out with the Legal Aid Society and then 

14   the Puerto Rican Legal Defense and Education Fund 

15   back in the '80s, when we were both much, much 

16   younger.  

17                And so on top of her being an 

18   amazingly qualified candidate to be sent to us 

19   for confirmation today, she is also an incredibly 

20   solid human being who cares about the people of 

21   this state, who will never do anything but make 

22   us unbelievably proud as a jurist on the highest 

23   court of New York State, because her entire 

24   career -- before I think she ever imagined being 

25   a law professor or moving to the bench -- her 


                                                               482

 1   entire career has been one committed to the 

 2   people of New York State, making sure they have 

 3   the opportunity to be protected under our laws 

 4   and that our laws are upheld at the highest and 

 5   most complicated standard.

 6                So a little bit in advance, I want 

 7   to thank Professor Rivera for what I know will be 

 8   an amazing career on our highest court.

 9                Thank you very much.  I vote yes, 

10   Mr. President.

11                ACTING PRESIDENT GRIFFO:   Senator 

12   Diaz.

13                SENATOR DIAZ:   Thank you, 

14   Mr. President.

15                I'm going to follow Bill Perkins' 

16   lead by recognizing members of the Legislature 

17   that are here.  And over there we see Assemblyman 

18   José Rivera and Assemblywoman Carmen Arroyo.  So 

19   they are here, I could imagine, or I imagine, 

20   supporting the nomination of Jenny Rivera.

21                I remember when George Bush was the 

22   president, and I remember that he nominated two 

23   judges, Hispanics, Alberto Gonzales and Miguel 

24   Estrada, a Republican president nominating 

25   Hispanic judges.


                                                               483

 1                And I remember how the 

 2   Democratic Party and how the members of the 

 3   Judiciary Committee in the Senate jumped all over 

 4   those candidates.  I remember how badly 

 5   criticized were those candidates by the 

 6   Democratic Senate because they were nominated by 

 7   a Republican president.  

 8                But I also remember -- no, I don't, 

 9   no.  No, I don't remember, I don't remember the 

10   Hispanic community, the Hispanic media and the 

11   Hispanic elected officials rising up to defend 

12   those well-qualified judges.  But because they 

13   were nominated by a Republican president, and 

14   maybe because they were Republican, the Hispanic 

15   pride, the Hispanic heritage was neglected by 

16   everyone.  Nobody cares.

17                I am a Puerto Rican, born and raised 

18   in Bayamón, in Barrio La Cuchilla, Bayamón, 

19   Puerto Rico.  And I live in Bronx County.  And if 

20   you want to appoint, if you want to nominate, if 

21   you want to get a good judge of Hispanic descent, 

22   come to the Bronx.  We have plenty.  Well 

23   qualified, with a lot of experience, with all the 

24   qualifications that will make us in the Hispanic 

25   community proud.  


                                                               484

 1                See, when President Obama nominated 

 2   Judge Sotomayor, that was a hit.  Everybody 

 3   jumped, and that was really because he got the 

 4   best in the community.  

 5                In the Bronx we have Luis Gonzalez, 

 6   with a lot of experience.  Puerto Rican, like 

 7   me.  In New York City we have Rolando Acosta.  

 8   Dominican, like you {to Senator Espaillat}.  We 

 9   have, in New York City, Judge Faviola Soto, the 

10   first Dominican woman to be elected to the 

11   Supreme Court.  In the Bronx we have Sallie 

12   Manzanet.  We have Nelson Roman, Lucindo Suarez, 

13   Ruben Franco, George Villegas.  We have plenty in 

14   the Bronx.

15                So when anyone stands up and 

16   questions and ask questions why, members of my 

17   community jump and say that's racism, that's 

18   discrimination.  

19                That was a good move by Governor 

20   Cuomo.  You know, Governor Cuomo is the one 

21   winning here.  It's good for his presidential 

22   ambitions, because he put the Hispanic media and 

23   the Hispanic community and leaders to fight 

24   against non-Hispanic and against the Republicans, 

25   saying "Oh, the Republicans."


                                                               485

 1                This is not about Republicans.  This 

 2   is not about Dominicans.  This is about the best 

 3   in our community.  This is what is best what is 

 4   something -- see, Judge Rivera will be appointed 

 5   today.  She will be appointed, there's no 

 6   question about it.  The only question is that all 

 7   the media and everybody is talking about if she 

 8   is or is she not qualified, if she's a judge, if 

 9   she worked only one year for Judge Sotomayor, if 

10   she has all the credentials.  And she will be 

11   appointed.  

12                But that's uncalled for.  Because we 

13   have judges in our community that could have been 

14   appointed, and none of it has happened.  None of 

15   it has gone through.

16                I was a member of the 

17   Judiciary Committee for many years until this 

18   year that -- Sampson appointed me to the 

19   Judiciary Committee, and I was a member of the 

20   Judiciary Committee until this year that my new 

21   boss removed me.  It was you, Mike Gianaris.  

22   Somebody removed me from that committee.  That's 

23   okay.  I've been kicked out of better places in 

24   my life.

25                So, ladies and gentlemen, whatever 


                                                               486

 1   happens here today -- and I'm pretty sure that 

 2   Judge Jenny Rivera will be nominated -- we all 

 3   have to know and the people have to know that 

 4   there is nothing wrong, nothing wrong by 

 5   questioning, by saying what is your credentials, 

 6   you should be a better candidate or should have 

 7   done other or whatever.  

 8                So I am not taking this as an act of 

 9   racism or discrimination or Republican -- because 

10   I -- I was hurt and angry when George Bush 

11   appointed Alberto Gonzales and Miguel Estrada and 

12   none of the Hispanic community, none of the 

13   Hispanic newspapers, none of the Hispanic media 

14   came to defend those judges.

15                So today the Governor has achieved 

16   something very important.  All the Hispanic 

17   media, even Channel 47 {in Spanish} is here.  And 

18   tonight the Governor is going to say, Oh, a 

19   triumph.  

20                If the Governor wanted -- if the 

21   Governor really, really, really wanted a 

22   Hispanic, Luis Gonzalez, Rolando Acosta, Faviola 

23   Soto, Sallie Manzanet, Nelson Roman, Lucindo 

24   Suarez, Ruben Franco, George Villegas would have 

25   gone through, smooth, through the committee.  I'm 


                                                               487

 1   pretty sure that Senator Bonacic and the members 

 2   of the committee would not have questioned them 

 3   as they did to Jenny Rivera.  

 4                So, ladies and gentlemen, stop the 

 5   nonsense and stop this pitting communities 

 6   against other communities.  And there's nothing 

 7   wrong about questioning people.  Questioning 

 8   credentials or questioning experience.

 9                To Judge Jenny Rivera, I wish her 

10   well.  She will be appointed today.  And to those 

11   of you that has come all the way from the city 

12   and from all over to support her, where were you 

13   when George Bush nominated Alberto Gonzales and 

14   Miguel Estrada?  

15                Thank you, Mr. President.

16                ACTING PRESIDENT GRIFFO:   Senator 

17   Adams.

18                SENATOR ADAMS:   Thank you, 

19   Mr. President.  

20                You know, I'm going to thank 

21   Senator Perkins and Senator Rivera for their 

22   comments, because it made me think of two points 

23   in my law enforcement career.  

24                The first was when I was a rookie 

25   and I walked inside the precinct and I saw the 


                                                               488

 1   officers who were there, they were walking, and 

 2   they would kick the side of the soda machine and 

 3   get a free soda.  And I saw this for about a 

 4   week.  And then one day I came in, I kicked the 

 5   machine, I got a free soda.  The next day a 

 6   repairman was there fixing that machine.  

 7                And then I think about Police 

 8   Commissioner Bernie Kerik.  Mayor Giuliani 

 9   appointed him.  He had a high school equivalency 

10   diploma, jumped over all of these experienced men 

11   and women because Giuliani felt he was the right 

12   person.  

13                This term "experience and 

14   qualification" is something that's defined by 

15   others and not the person who's making the 

16   decision who they want to sit on the court.

17                The Governor decided.  He made the 

18   determination based on what he believed is needed 

19   to make the court the type of court that we need 

20   to move into the new century.  

21                Those old schools of thought that 

22   are looking down on people because they say they 

23   are community organizers that rise to become the 

24   president, that look down on people who have 

25   everyday experience in their homes -- I think 


                                                               489

 1   street credibility counts for something.  

 2                That may not fit your criteria in 

 3   experience.  But I think a person who walks a 

 4   beat, a person who grew up in public housing, a 

 5   person who had to go through the grueling task of 

 6   rising to the point where they are -- if you look 

 7   under Judge Rivera's fingernails, you will see 

 8   the dirt and grime of climbing up the mountain of 

 9   opportunity one hand at a time.  Many of you, 

10   your family members have done the same thing.  

11                This is the right choice.  I support 

12   that choice.  And I'm sure members here on both 

13   sides of the aisle know this is the right 

14   choice.  She will do this state proud.  

15                Congratulations to you, Judge.

16                ACTING PRESIDENT GRIFFO:   Senator 

17   Squadron.

18                SENATOR SQUADRON:   Thank you very 

19   much, Mr. President.  

20                Look, this has been talked about 

21   extensively today and over the extensive 

22   hearings.  Professor Rivera's qualifications are 

23   in fact stellar.  Her professional experience, 

24   from serving with great distinction as the head 

25   of the AG's Civil Rights Bureau to years focusing 


                                                               490

 1   on civil rights law and civil litigation, is 

 2   critically important.  

 3                This idea that suddenly the number 

 4   of trials that you've gone through is the 

 5   qualification is in conflict with the way that we 

 6   always choose and measure judges.  

 7                But there's one other point that I 

 8   want to make that hasn't been made today.  

 9   Professor Rivera grew up in my district, in a 

10   place called the Baruch Houses, which is a public 

11   housing development in the heart of the 

12   Lower East Side.  And let me tell you, it's a 

13   tough place.  It was a tough place when 

14   Professor Rivera was growing up, it's still a 

15   tough place today.

16                People don't come out of 

17   Baruch Houses and have the career that 

18   Professor Rivera has had just by skating by.  

19   That is not a thin qualification.  It is an 

20   extraordinary personal story, and a meaningful 

21   one.

22                The fact that Professor Rivera came 

23   from the heart of the Lower East Side, came from 

24   a tough public housing development and has had 

25   the career she has and has now been nominated and 


                                                               491

 1   put forward by the Governor to serve on the 

 2   state's highest court, is in and of itself, in 

 3   addition to the other qualifications, an 

 4   important one.  And it is an inspirational one.  

 5                And so I hope that today, while 

 6   we're all up here making our speeches, there are 

 7   kids on the Lower East Side, there are kids in 

 8   Baruch Houses and the other public housing 

 9   developments, kids whose parents have just come 

10   here from lands far away, who are watching.  

11   Because it's not easy, and you have to have an 

12   extraordinary work ethic and some pretty 

13   extraordinary talent, as Professor Rivera shows.  

14   But it is possible to rise from that place, from 

15   that tough, tough life on the Lower East Side to 

16   the state's highest court.  

17                It's a wonderful moment, and one 

18   that I hope many kids across the state and 

19   certainly on the Lower East Side will take to 

20   heart.  

21                Thank you, Professor Rivera, for 

22   that experience.  Thank you for serving.  Thank 

23   you for agreeing to serve.  And I look forward to 

24   voting aye for your nomination.  

25                Thank you, Mr. President.


                                                               492

 1                ACTING PRESIDENT GRIFFO:   Thank 

 2   you, Senator Squadron.

 3                Senator Serrano.

 4                SENATOR SERRANO:   Thank you very 

 5   much, Mr. President.

 6                I rise in support of the nominee.  

 7   And I won't repeat so much of what's already been 

 8   said.  

 9                But in looking over the 

10   qualifications of the candidate, what strikes me 

11   is the amount of experience, grassroots legal 

12   experience, that the nominee has.  And to me, 

13   that is something that sets her apart, something 

14   that helps her to understand the very people and 

15   situations that she will eventually be sitting in 

16   judgment of.  

17                Because it won't be numbers, books 

18   or accounts that she will be sitting in judgment 

19   of, it will be humanity.  It will be real 

20   situations.  And her experience, her resume 

21   speaks to the level of humanity that she has and 

22   that she's experienced over the years.  

23                So I stand in support because I 

24   believe she'll be a tremendous judge and she will 

25   excel on the Court of Appeals.  


                                                               493

 1                Thank you.

 2                ACTING PRESIDENT GRIFFO:  Thank you, 

 3   Senator Serrano.

 4                Senator Sampson.

 5                SENATOR SAMPSON:   Thank you very 

 6   much, Mr. President.  

 7                I rise in support of this 

 8   nomination.  And when I see Professor Rivera, I 

 9   see a woman who has a wealth of life experience, 

10   someone who may have been born in poverty but did 

11   not stay in poverty.  Someone who educated 

12   themselves to the point where she has been 

13   nominated to the Court of Appeals.  

14                And, you know, I respect my 

15   colleague Senator Bonacic, the chair of the 

16   Judiciary Committee, because he really takes 

17   these nominations, these appointments very 

18   seriously.  And we're looking to make sure that 

19   we get the best and the brightest on the bench.  

20                And, you know, when we talk about 

21   social engineering, to me it's not social 

22   engineering, it's called diversity.  It's about 

23   making sure that we have a body that is 

24   reflective of all people in the State of 

25   New York.  


                                                               494

 1                We can talk about experience.  You 

 2   know, the bottom line is this.  When you're a 

 3   justice, associate judge on the Court of Appeals, 

 4   you have three things that you look at:  Merit, 

 5   the rule of law, and precedent.  That's what you 

 6   base your decisions upon.  You can be a professor 

 7   in academia, you can be a litigator, but most of 

 8   all, if you do not have the ability and 

 9   understand that irrespective of your background, 

10   irrespective of your ideology, we're taught that 

11   you guide on three principles when making a 

12   decision.  And these decisions have to be based 

13   upon three principles.  

14                And I can understand my colleague's 

15   concern about the question of judicial activism.  

16   But when you're a professor, you always want to 

17   provoke thought in all of your students.  You 

18   want them to -- and we all have that opportunity, 

19   especially as litigators.  Especially, we look 

20   for something that's not there so we can 

21   represent our clients to the fullest extent.  

22                So, Professor Rivera, I want to 

23   commend you on doing something that a lot of 

24   people have had the opportunity to, but you have 

25   excelled about that, and that is making sure you 


                                                               495

 1   never forget where you come from.  

 2                So I want to thank you, because you 

 3   could have went to a white-shoe law firm, you 

 4   could have been a partner in one of those big law 

 5   firms.  But you chose to be a professor who 

 6   understands it is important to shape the minds of 

 7   the young people that we are looking forward to 

 8   represent us throughout this state and throughout 

 9   this country.  

10                So I just want to congratulate the 

11   nominee on hopefully her appointment to the Court 

12   of Appeals.  

13                Thank you very much, Mr. President.

14                ACTING PRESIDENT GRIFFO:   Senator 

15   DeFrancisco.

16                SENATOR DeFRANCISCO:   Yes.  

17   Sometimes we lose sight, I believe, of what the 

18   purpose of our being in a particular position and 

19   what our responsibility is.  And sometimes in 

20   this job emotions are high on both sides of an 

21   issue.  But each one of us, I believe, is trying 

22   to make a decision in good faith based upon what 

23   the issue may be.

24                In this case, the issue is whether 

25   or not this individual should be confirmed as a 


                                                               496

 1   Court of Appeals appointee.  Nothing more, 

 2   nothing less.  And the responsibility of the 

 3   State Senate and each Senator, based on his or 

 4   her particular feelings, is to make a 

 5   determination on that point.

 6                Now, there's been much said about a 

 7   woman who had a dream and came from the public 

 8   housing and had all of this background, in the 

 9   trenches on the issues that she dealt with.  But 

10   I kind of think -- I may be wrong, because I 

11   hadn't talked to any of these people -- but the 

12   other potential nominees, Sheila Abdus-Salaam, I 

13   think she probably had a dream at one time in her 

14   life too, to become a member of the highest court 

15   of this state.  

16                Or how about Rolando Acosta?  I 

17   think he probably had a dream sometime -- I don't 

18   know where he came from or what his upbringing 

19   was -- to become a member of the highest court of 

20   the State of New York.  

21                And I can go through the entire 

22   list, or the list of individuals that Senator 

23   Diaz mentioned.  I'm sure they had a dream.  And 

24   I'm sure their circumstances growing up were 

25   probably difficult as well.


                                                               497

 1                Now, that's all very interesting, 

 2   and it's all something that people can consider.  

 3   But it seems to me that this appointment to the 

 4   highest court of the state, you've got to pick 

 5   the best possible and confirm the best possible 

 6   candidates for that particular position.  No 

 7   matter what their aspirations during their 

 8   lifetime may be, but what they have accomplished 

 9   during their lifetime.  

10                And with a Court of Appeals judge, 

11   it's not just deciding issues on what you've 

12   studied in one narrow area of the law.  The 

13   broader the experience or the judicial experience 

14   that you have bodes well for you in getting that 

15   nomination, I thought.  I thought.

16                Now, I think what people who happen 

17   to be -- including myself -- who happen to be 

18   voting no are voting on is that this is not the 

19   best candidate, period.  There's all kinds of 

20   wonderful attributes that this candidate has -- 

21   but in comparison to the other potential nominees 

22   that are out there, then that is a decision that 

23   everybody has to make.  

24                I think if you don't have judicial 

25   experience, you at least have to have a broad 


                                                               498

 1   range of experience in the courtroom because 

 2   you're going to make decisions on a broad range 

 3   of things.  But that's my particular point of 

 4   view.

 5                I for one don't believe that there 

 6   should be an Italian-American seat, an Hispanic 

 7   seat.  And then according to her own writings, is 

 8   that Hispanic seat Puerto Rican, is it Mexican, 

 9   is it whatever subclassifications, according to 

10   her own writing?  There just isn't enough seats 

11   on the Court of Appeals to do that.  But that's 

12   the way I believe.  That's the way I believe.  

13                However, if the decision is made 

14   that this is going to be an Hispanic that is 

15   going to be appointed by the Governor of the 

16   State of New York -- and that's obvious, no one 

17   can deny that -- then shouldn't it be the best 

18   possible candidate that he could appoint?  And I 

19   don't think this candidate is the is the best.

20                Now, I hope the Governor -- I'm 

21   sure -- I don't know what he'll do, but he may 

22   take affront at my remarks.  I have stood here 

23   for every nominee, whether it's for a judge, 

24   whether it's from the Finance Committee, 

25   consistently praising the Governor on his 


                                                               499

 1   decisions because he's made some phenomenal 

 2   appointments to key positions in the State of 

 3   New York.  The Court of Appeals position is 

 4   something that we should hang very high and get 

 5   the best possible qualifications.

 6                Lastly, as a lawyer who did a lot of 

 7   trial work, I struggled for years trying to 

 8   interpret decisions of the court.  I struggled 

 9   for years.  I know Appellate Division judges and 

10   trial-level judges struggle to try to interpret 

11   the writings of the Court of Appeals:  What did 

12   they mean by that?  What's the legal precedent 

13   mean?  

14                And with all due respect, I've read 

15   her writings, because I haven't -- there's no 

16   judicial decisions, and I don't think they're 

17   clear.  I don't think they're precise.  I don't 

18   think they're going to be able to give the 

19   guidance that lower courts and lawyers will need.

20                So for the simple reason in this 

21   particular case, my job is to determine whether 

22   or not I believe this person should be elevated 

23   to the Court of Appeals.  I do not believe so.  

24   There are many other Hispanics, many other -- and 

25   other ethnic groups that certainly are more 


                                                               500

 1   qualified.

 2                So for that reason and those reasons 

 3   that I just mentioned, and much of what Senator 

 4   John Bonacic had said earlier, I'm going to vote 

 5   no.

 6                ACTING PRESIDENT GRIFFO:   The 

 7   question is on the nomination of Jenny Rivera to 

 8   the New York State Court of Appeals.  All present 

 9   signify by saying aye if you are in favor.

10                (Response of "Aye.")

11                ACTING PRESIDENT GRIFFO:   Nay if 

12   opposed.

13                (Response of "Nay.")

14                ACTING PRESIDENT GRIFFO:   Senator 

15   Montgomery, why do you rise?  

16                SENATOR MONTGOMERY:   I would like 

17   to explain my vote.

18                ACTING PRESIDENT GRIFFO:   I will 

19   allow you the opportunity to speak.

20                SENATOR MONTGOMERY:   Thank you.

21                Mr. President, I have personally not 

22   met Jenny Rivera, but I see her qualifications 

23   and I've heard my colleagues speak so eloquently 

24   on all of them.  And I certainly appreciate the 

25   many years that she has had and the depth and 


                                                               501

 1   breadth of her experience, so I'm happy to 

 2   support this nomination.

 3                I, having had the experience myself 

 4   as an African-American woman, when you get to the 

 5   certain point where it's time for you to break 

 6   the ceiling or move up, they say you just didn't 

 7   have the right experience, you didn't have that 

 8   many years enough, you didn't have the proper 

 9   experience -- there's always an excuse.  This is 

10   the oldest line in the book when you don't want 

11   to vote or to allow someone to move in position.

12                So, Mr. President, I don't know her 

13   personally, but I am very proud to be able to 

14   stand here today in this chamber and vote for a 

15   woman who is eminently qualified to be on the 

16   Court of Appeals.  I vote aye.

17                ACTING PRESIDENT GRIFFO:   Thank 

18   you, Senator Montgomery.  

19                Having heard the ayes and the nays, 

20   having called for them and heard them, the ayes 

21   have it.  Jenny Rivera is hereby confirmed as a 

22   New York State Court of Appeals judge.

23                (Sustained applause.) 

24                ACTING PRESIDENT GRIFFO:   May I 

25   have order, please.


                                                               502

 1                On behalf of the Senate of the State 

 2   of New York, we'd like to extend our 

 3   congratulations and best wishes to Professor 

 4   Rivera.  Professor Rivera is here today with her 

 5   domestic partner, Audie Serrano, as well as close 

 6   friends and colleagues from the CUNY law system.  

 7                Congratulations again, Professor 

 8   Rivera, and good luck.  

 9                (Applause.)

10                ACTING PRESIDENT GRIFFO:   May I 

11   have order in the chamber.

12                Senator Libous.

13                SENATOR LIBOUS:   Thank you, 

14   Mr. President.  We do have a calendar to go 

15   over.  

16                Could we please have the reading of 

17   the noncontroversial calendar.

18                ACTING PRESIDENT GRIFFO:   The 

19   Secretary will read.

20                THE SECRETARY:   Calendar Number 15, 

21   by Senator Fuschillo, Senate Print 772, an act to 

22   amend the Vehicle and Traffic Law.

23                ACTING PRESIDENT GRIFFO:   Read the 

24   last section.

25                THE SECRETARY:   Section 3.  This 


                                                               503

 1   act shall take effect immediately.

 2                ACTING PRESIDENT GRIFFO:   Call the 

 3   roll.

 4                (The Secretary called the roll.)

 5                ACTING PRESIDENT GRIFFO:   Announce 

 6   the results.

 7                THE SECRETARY:   In relation to 

 8   Calendar Number 15, those recorded in the 

 9   negative are Senators Adams, Espaillat, Gipson, 

10   Hoylman, Montgomery, Perkins, Squadron and 

11   Tkaczyk.  Also Senator -- 

12                ACTING PRESIDENT GRIFFO:   I'm going 

13   to ask for order in the house.  Please leave the 

14   chamber if you're conducting business.  Members, 

15   please take your seats.

16                THE SECRETARY:   Also Senator 

17   Parker.

18                Ayes, 52.  Nays, 9.

19                ACTING PRESIDENT GRIFFO:   The bill 

20   is passed.

21                THE SECRETARY:   Calendar Number 18, 

22   by Senator Marcellino, Senate Print 1519, an act 

23   to amend the Vehicle and Traffic Law.

24                ACTING PRESIDENT GRIFFO:   Read the 

25   last section.


                                                               504

 1                THE SECRETARY:   Section 6.  This 

 2   act shall take effect on the 120th day.

 3                ACTING PRESIDENT GRIFFO:   Call the 

 4   roll.

 5                (The Secretary called the roll.)

 6                THE SECRETARY:   Ayes, 61.

 7                ACTING PRESIDENT GRIFFO:   The bill 

 8   is passed.

 9                THE SECRETARY:   Calendar Number 19, 

10   by Senator DeFrancisco, Senate Print 1790, an act 

11   to amend the Navigation Law.

12                ACTING PRESIDENT GRIFFO:   Read the 

13   last section.

14                THE SECRETARY:   Section 5.  This 

15   act shall take effect on the 120th day.

16                ACTING PRESIDENT GRIFFO:   Call the 

17   roll.

18                (The Secretary called the roll.)

19                THE SECRETARY:   Ayes, 61.

20                ACTING PRESIDENT GRIFFO:   The bill 

21   is passed.

22                THE SECRETARY:   Calendar Number 20, 

23   by Senator Bonacic, Senate Print 1878, an act to 

24   amend the Vehicle and Traffic Law.

25                ACTING PRESIDENT GRIFFO:   Read the 


                                                               505

 1   last section.

 2                THE SECRETARY:   Section 3.  This 

 3   act shall take effect immediately.

 4                ACTING PRESIDENT GRIFFO:   Call the 

 5   roll.

 6                (The Secretary called the roll.)

 7                THE SECRETARY:   Ayes, 60.  Nays, 

 8   1.  Senator Parker recorded in the negative.

 9                ACTING PRESIDENT GRIFFO:   The bill 

10   is passed.

11                THE SECRETARY:   Calendar Number 21, 

12   by Senator Addabbo, Senate Print 1919, an act to 

13   amend the Vehicle and Traffic Law.

14                ACTING PRESIDENT GRIFFO:   Read the 

15   last section.

16                THE SECRETARY:  Section 2.  This act 

17   shall take effect immediately.

18                ACTING PRESIDENT GRIFFO:   Call the 

19   roll.

20                (The Secretary called the roll.)

21                THE SECRETARY:   Ayes, 61.

22                ACTING PRESIDENT GRIFFO:   The bill 

23   is passed.

24                THE SECRETARY:   Calendar Number 23, 

25   by Senator Golden, Senate Print 2503, an act to 


                                                               506

 1   amend the Vehicle and Traffic Law.

 2                ACTING PRESIDENT GRIFFO:   Read the 

 3   last section.

 4                THE SECRETARY:   Section 2.  This 

 5   act shall take effect on the first of November.

 6                ACTING PRESIDENT GRIFFO:   Call the 

 7   roll.

 8                (The Secretary called the roll.)

 9                THE SECRETARY:   Ayes, 59.  Nays, 

10   2.  Senators Montgomery and Parker recorded in 

11   the negative.

12                ACTING PRESIDENT GRIFFO:   The bill 

13   is passed.

14                Senator Libous, that completes the 

15   noncontroversial reading of the calendar.

16                SENATOR LIBOUS:   Thank you, 

17   Mr. President.  

18                Is there any further business at the 

19   desk?  

20                ACTING PRESIDENT GRIFFO:   There is 

21   no further business before the desk.

22                SENATOR LIBOUS:   Mr. President, at 

23   this time, on behalf of Senator Klein, 

24   Senator Skelos, I hand up the following committee 

25   assignments and ask that such assignments be 


                                                               507

 1   filed in the Journal.

 2                ACTING PRESIDENT GRIFFO:   So 

 3   ordered.

 4                Senator Libous.

 5                SENATOR LIBOUS:   Mr. President, 

 6   there being no further business, I move that the 

 7   Senate adjourn until Tuesday, February 12th, at 

 8   11:00 a.m.

 9                ACTING PRESIDENT GRIFFO:   On 

10   motion, the Senate stands adjourned until 

11   Tuesday, February 12th, at 11:00 a.m. 

12                Senate adjourned.

13                (Whereupon, at 4:59 p.m., the Senate 

14   adjourned.)

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