The smart money for Governor Andrew Cuomo’s nod for the next New York Court of Appeals judge is on either First Department Appellate Division Justice Rolando T. Acosta or CUNY Law School Professor Jenny Rivera. Both are Hispanic.
The two are among the names of seven candidates given the governor by the Commission on Judicial Nomination from which he must select the successor to Judge Carmen B. Ciparick who lefte court at 12:00 a.m. Jan. 1, because of the state’s mandatory retirement rules.
Ciparick is the first, and only Hispanic, to have served on the state’s highest court. Cuomo must make his selection during a 15-day window beginning New Year’s Day. His choice for the position, which pays an annual salary of $177,000, is subject to confirmation by the state senate.
Margarita Rosa, the director of the Grand Street Settlement, who is also Hispanic, was also considered a likely choice by eight lawyers, well versed in the politics of judicial appointments. But her chances have slipped in the wake of major bar association rankings released last week.
Rosa was the only candidate to be ranked unqualified by one of the four major bar associations—the New York State Bar Association. The other associations that released their findings last week were the New York City Bar, the Women’s Bar Association of the State of New York and the New York State Trial Lawyers Association.
As for the other two Hispanic candidates, Acosta gained an edge from the bar association ratings. He alone received the highest rating from all four associations as reported by the New York Law Journal on Dec. 2o. Rivera, in contrast, only received the highest rating issued by the New York State Bar Association. All six of the candidates, other than Rosa who was not approved, received the state bar’s highest rating.
For the most part, the associations reserved their highest ranking for sitting appellate division justices. First Department Justice Sheila Abdus-Salaam garnered highest rankings of the city bar and the state trial lawyers, and Fourth Department Justice Eugene M. Fahey received the highest ratings of the women’s bar and the state trial lawyers. They also, like all candidates, except Rosa, received the state bar’s top ranking.
Of the remaining non-judge candidates, two received a top ranking: David A. Schulz, a first amendment expert at Levine Sullivan Koch & Schulz, from the women’s bar association, and Kathy H. Chin, a partner at Cadwalader, Wickersham and Taft, from the state bar.
Race and Gender Key Factors
Assuming that the commission’s choices were all highly qualified, I asked the eight political gurus to assess the political factors that would likely inform the governor’s choice. Two of those interviewed expressed a preference for Acosta and one for Rivera.
All, but one, of the eight said that it was likely that Cuomo would chose an Hispanic to replace Ciparick. Key points in favor of Acosta, some said, was his judicial experience, something neither of the other two Hispanic candidates have; that he is well liked among his peers and, as the first Dominican to serve on the Appellate Division, he has developed strong political backing.
Others offered that both Rivera and Rosa offered Cuomo the opportunity to appoint a “breakaway candidate” in the mold of Judge Judith S. Kaye, who had no judicial experience when his father, then Governor Mario Cuomo, appointed her to the Court of Appeals in 1983. Both Rivera and Rosa are of Puerto Rican ancestry.
The governor has shown a propensity to appoint persons to key positions in his administration who worked for either his father aor for him while he was secretary of the U.S. Department of Urban Development and attorney general. Both Rivera and Rosa fit that mold.
Rivera worked for two years as a special deputy attorney general under Cuomo. In that post, Rivera was responsible for developing that office’s civil rights agenda and managing its Civil Rights Bureau.
Rosa worked for the state Division of Human Rights for 10 years while the elder Cuomo was governor, that last five of them as the division’s commissioner. Some suggested, though, that the governor might be hesitant to appoint her because she has not worked as a lawyer since becoming executive director of the Grand Street Settlement in 1995. That may have been a factor in the state bar’s rating.
Other diversity considerations factor into Cuomo’s choice, several said. He is unlikely in such short order to appoint two new judges from a single Appellate Division department. Similarly, the odds are against him selecting two men, they said.
Several of those interviewed, including the Rivera supporter, tended to view the appointment of a woman to succeed Ciparick as a political factor nearly as important as the appointment of an Hispanic. Others, including the Acosta backers, however, saw the recent opening on the court created by the death in November of Judge Theodore T. Jones Jr., as giving the governor more room to maneuver.
Jones was the only black member of the court. With two opening to fill, both created by the departures of minority judges, they reason, Cuomo could fill the Ciparick vacancy with Acosta and then follow up with the appointment of a black female to the Jones seat.
First Department Justice Sheila Abdus-Salaam, a judge highly regarded by courthouse staff as well as court observers, was among the seven judges cleared by the nomination commission for the Ciparick vacancy, and consequently is well positioned to make the next list. As a First Department justice, several said, her chances would be downgraded if Acosta were appointed to the Ciparick seat.
There are several other black women appellate judges sitting in New York City. Justices Dianne T. Renwick and Darcel D. Clark in the First Department, and Justices Cheryl Chambers, L. Priscilla Hall and Sylvia O. Hines-Radix in the Second.
Chambers was widely considered one of the strongest candidates for appointment to succeed Justice A. Gail Prudenti as presiding justice of the Second Department. Cuomo, however, selected Justice Randall T. Eng for that post in October.
On the other hand, should Cuomo appoint a woman, neither of the two African American men currently on the Appellate Division—Justice Leland G. DeGrasse in the First and Justice Plummer E. Lott in the Second—is interested in the position, according to persons familiar with their thinking. Both are just three years shy of mandatory retirement, they added, and Cuomo is looking for younger appointees.
Aside from Abdus-Salaam it not known whether any of the other six Appellate Division justices applied for the Ciparick opening and did not make the final seven. Friday, Dec. 21, was the deadline for applying for the Jones seat. Cuomo appointed both Clark and Hines-Radix to the Appellate Division about a month before Jones died unexpectedly of a heart attack.
Another name that has been in wide circulation is Mylan L. Denerstein, Cuomo’s counsel who is black. But one cognoscente said that Denerstein is too valuable to the governor for him to give up, and others agreed.
A Liberal Voice
Acosta, 57, has been a liberal voice on the Appellate Division since his appointment in 2008. He has authored opinions opening the city human rights law law to broader interpretation than permitted by judicial interpretations of parallel provisions in state and federal civil rights laws, Williams v. NYC Housing Authority, 61 AD3d 62 (2009); limited the reach of earlier rulings suggesting that directors of co-op boards are immune from personal liability for claims of racial discrimination, Fletcher v. Dakota, 2012 Slip Op. 05338; and, in a 3-2 ruling, reinstated the Legal Aid Society as a lawyer for a defendant, finding the trial judge had been uneven, and hostile, to the organization, in its handling of adjournments, People v. Griffin, 92 AD3d 1 (2011).
In 2010, however, Acosta parted company with four of his colleagues who struck down a court system experiment which merged of the handling of felony and misdemeanors in the Bronx into a single court.
In People v. Correa, 70 AD3d 532, Acosta was the sole dissenter, but his position was affirmed by the New York Court of Appeals in a 6-0 ruling, which concluded that court administrators have broad authority to move the handling of cases from other courts, such as the New York City Criminal Court, into the Supreme Court.
Acosta received his undergraduate and law degrees from Columbia University. Prior to his election to the bench as a Civil Court judge in 1997, Acosta worked at both the Legal Aid Society and the New York City Commission on Human Rights.
At the commission, he became first deputy commissioner in charge of the organization’s daily operations. He subsequently headed the Legal Aid Society’s largest office providing free civil legal services to poor and later became the group’s director of government and community relations.
Focus on Hispanic Rights and Domestic Violence
Rivera, 51, teaches several core courses as well as classes on civil rights and Latinos and the law. After a two-year leave of absence to serve as Cuomo’s top civil rights advisor, she returned to the law school in 2008 to found the school’s Center on Latino and Latina Rights and Equality. The center’s mission is to promote public education, scholarship and research to address discrimination and other issues adversely impacting the Hispanic community.
Her academic writings have addressed issues related to civil rights laws and domestic violence, including domestic violence within the Hispanic community.
Prior to joining the CUNY faculty in 1997, Rivera was an attorney with the Legal Aid Society’s homeless rights project and the Puerto Rican Legal Defense and Education Fund (since renamed Latino Justice). She received her law degree from New York University School of Law and her undergraduate degree from Princeton College.
CORRECTION: An earlier version of this article incorrectly listed Second Department Justice Sheri S. Roman as one of the black, female justices sitting on that court.