Monday, February 11, 2013

ACTING PRESIDENT GRIFFO:Without objection, the Journal stands approved as read.

Presentation of petitions.

Messages from the Assembly.

Messages from the Governor.

Reports of standing committees.

Reports of select committees.

Communications and reports from state officers.

Motions and resolutions.

Senator Libous.

SENATOR LIBOUS:Mr. President, before we do the report from the Judiciary Committee, could members enter the chamber and take their seats. Could I ask the Sergeant-at-Arms to make sure that the doors are secure and that we can begin this process in a quiet and orderly manner.

So, Mr. President, I believe there is a report from the Judiciary Committee at the desk.

ACTING PRESIDENT GRIFFO:Thank you, Senator Libous.

I would ask the members to please take their desks, staff to please find suitable quarters, and the Sergeant-at-Arms to have the doors closed.

Returning to reports of standing committees, the Secretary will read the report of the Judiciary Committee.

THE SECRETARY:Senator Bonacic, from the Committee on Judiciary, reports the following nomination:

Jenny Rivera, of the Bronx, as a judge of the New York State Court of Appeals.

ACTING PRESIDENT GRIFFO:Senator Bonacic.

SENATOR BONACIC:Thank you, Mr. President.

Last week the Judiciary Committee met and considered the nomination of Jenny Rivera as a judge of the Court of Appeals for a term commencing January 15, 2013, and expiring January 14, 2027.

Professor Rivera is with us today in the gallery. Professor Rivera is joined in the gallery by Audie Serrano, her domestic partner, as well as her close family, friends and some of her colleagues from CUNY School of Law.

She is a resident of the Bronx, and she's in Senator Klein's district.

Pursuant to the provisions of Section 2 of Article 6 of the Constitution and the provisions of Section 68 of the Judiciary Law, the Judiciary Committee has reported the nomination without recommendation to the floor.

I now ask that you recognize Senator Klein.

ACTING PRESIDENT GRIFFO:Senator Klein.

SENATOR KLEIN:Thank you, Mr. President.

It is truly an honor for me to rise today to nominate Jenny Rivera of the Bronx to fill a term commencing on January 15, 2013, and expiring on January 14, 2027, as judge of the Court of Appeals.

Several years ago many of us stood on this floor and we spoke about the nomination at that time of Judge Jonathan Lippman, who at that time was being elevated to chief judge of the Court of Appeals. Sometimes it got contentious. A lot of times people questioned whether or not he was the right appointment to be elevated to be chief judge or the Court of Appeals.

But at that time I rose and spoke on behalf of Judge Lippman, citing his experience but most of all citing the fact that he was a product of New York, grew up on the Lower East Side. And I said then here was somebody who was born of immigrant parents, grew up on the Lower East Side, which is truly a melting pot, as everyone notion. And at that time he probably would only dream of becoming a lawyer, let alone someday being elevated to chief judge of the Court of Appeals.

Well, I said then and I say it again now that I think with Jenny Rivera's nomination today what we're seeing, first and foremost, is that that dream -- that dream of someone growing up in New York, growing up on the Lower East Side, spending their lives planning to be elevated to be a judge -- is alive and well in New York today.

Jenny Rivera comes to us in a very different way. She wasn't trained to be a Wall Street lawyer. She wasn't trained to join one of those white-shoe law firms. She was trained as a public woman, somebody who has dedicated her life to public service, someone who each and every day gets up in the morning with a singular purpose, to make a positive difference in people's lives.

Her background is quite impressive in the public service: A pro se law clerk in the Second Circuit Court of Appeals, associate counsel at the Puerto Rican Legal Defense and Education Fund, administrative law judge for the New York State Division of Human Rights, commissioner on the New York City Commission on Human Rights, law clerk to the U.S. District Court Judge, now Supreme Court Judge Sonia Sotomayor, Special Deputy Attorney General for Civil Rights and the chief of the Civil Rights Bureau in the State Attorney General's office.

She's someone who clearly, throughout her career, planned to be in this very place -- but in a different way, as I said, dedicated to public service.

I do also want to say a word about her most recent position. As many of you may know, Jenny Rivera is a professor at CUNY Law School, the City University Law School in New York, where she is the director of the Center of Latino and Latina Rights and Equality.

That means something to me, because I graduated from CUNY Law School. And I chose the law school for probably the same reason that Jenny Rivera chose to teach there. First of all, it trains lawyers to be in the public service. That's their singular goal. That's their singular purpose. It trains individuals to pursue a career in public service. You're encouraged, when you go to CUNY Law School, to bring your experience in the real world. That's why many of the students go there later in life, in many cases after a distinguished career in public service.

It also has the distinction of graduating more women and minorities than any law school in the State of New York. It's open to all. It's affordable.

As I said, it takes a very special person to graduate from that school, and it certainly takes a very special person to teach those law students each and every day. That's something that's very, very important, and I think that's going to serve Jenny well when she's a judge of the Court of Appeals.

I think we also have to acknowledge that Jenny's presence here today is a testament to our commitment in New York State to ensure that our courts are a reflection of the people they serve. We cannot expect to have a fair judicial system in all its aspects of expression without it representing the full scope and spectrum of our citizens.

History has also shown us that while we may have different areas of experience and accomplishment, we only advance as a community and a state and a nation by supporting each other. We may come from different cultures, but make no mistake: We share a human bond and we are collectively responsible for one another. Growing up in the Bronx taught me something very simple. When you lift up your friend, you lift yourself up as well.

What makes this country a beacon for all others around the globe that we honor each other's chosen path to success. In this country, and especially here in New York State, success is found through dedication, perseverance, courage and commitment to one's chosen field. I think the old adage or the old proverb proves true: All roads lead to Rome.

It is in that spirit that I stand here today and proudly and wholeheartedly support the nomination of Jenny Rivera to serve on the New York State Court of Appeals. Jenny Rivera is a fine legal mind, and I am completely confident that New Yorkers who come before her bench will know one certain truth: Justice will be served.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Thank you, Senator Klein.

Senator Bonacic.

SENATOR BONACIC:Thank you, Mr. President.

I believe the Court of Appeals appointment is one of the most important positions in New York State government. The decisions of the Court of Appeals affect millions of New Yorkers for generations to come. I believe the executive and legislative branches have a duty to see that the best, the brightest and the most qualified person is appointed to the highest court.

Since I have served on the Senate Judiciary Committee, I've had the responsibility to vote for eight nominees to the Court of Appeals. I voted yes all eight times. Four were women. One was Hispanic. One was African-American. And three were like me, but only smarter and more handsome.

The nominee has a very limited law practice experience. She has been a law professor most of her life. She served as a law clerk one year with Judge Sotomayor back in 1993 and one and a half years with the Attorney General, then Andrew Cuomo, and that was in 2007-2008. Those experiences, in my judgment, were more administrative law than the practice of law in the trenches with a variety of different areas.

I have every reason to believe that this nominee is smart, is passionate about the areas of the law that will interest her, and is a good professor.

I have spent considerable time studying her writings, and I have to tell you, I find her writings to be confusing and unclear and overwhelmingly not reflective of the number of cases or subject matters which come before a Court of Appeals judge.

I have concerns, if she were to be confirmed, that she would be prone to judicial activism rather than apply the statute before her. I also have concerns that it would be very difficult for her to be objective in all issues, given her passion in a limited area of law.

Academia is a perfect honorable profession. I have three academics at the high school or college level in my immediate family. But taking someone from academia and appointing them to the Court of Appeals -- or the Supreme Court, where they could get the training, I would be voting for this nominee. But you're asking, this Governor is asking this body to make a leap from the academic world right to the highest court in the State of New York.

Some have made the argument that this nominee will bring a different perspective and think outside the box. If you want someone on the court with a different perspective, one could choose an athlete with a law degree, choose a CEO of a corporation with a law degree, choose a hedge fund manager with a law degree. They would bring different perspectives, but not necessarily the perspective that's needed for a Court of Appeals judge.

I don't want a particular perspective on the bench. There is a place for perspective; it is here in the Legislature. And I submit that this body makes laws. That's the place for it to be.

Maybe Governor Cuomo felt this nominee was the very best of the seven that he has given us. I hope he did. I don't understand, you know, how he thinks. But he's the Governor, he's above my pay grade, he's smarter than I am, and I'm here.

Maybe the belief is that the three Appellate Division judges what were passed over were somehow less qualified than the nominee we have. I have said that in my view, governors engage in social engineering when it comes to judicial nominations. Some have disagreed with me. Maybe it was just a coincidence and not social engineering that the first Latina judge on our state's highest court is being replaced by the second Latina judge on our state's highest court.

If you are to believe that there is no social engineering in judicial picks and it is qualifications and only qualifications that matter, then you must believe that this nominee is better than three appellate judges, each of whom have been elected by the people and elevated by a governor to the Appellate Division.

You must believe that the nominee is more qualified than two active trial attorneys, partners who have litigated and not just consulted with major matters such as RICO claims, fair labor law, health insurance litigation, contract interpretation, religious discrimination claims, claims over education disputes for students with special needs, real estate litigation, local law compliance, allocation of payment in lieu of taxes agreement, a Harlan Fiske Stone scholar and a person who was appointed by two different mayors to serve on commissions as broadly different as planning and police corruption, who have served on task forces for two chief justices. And that, my colleagues, is just one resume of one candidate that was passed over.

To make this confirmation about one's ethnic background, though, instead of qualifications demeans the great Court of Appeals that our state has always had.

Those passed over include Rolando Acosta, a sitting judge of the Appellate Division. Judge Acosta is an Hispanic-American who is deemed to have the highest qualifications and has written numerous reported decisions.

Judge Eugene Fahey, a highly qualified and highly recommended justice of the Appellate Division.

Kathy Chin, a seasoned litigator who happens to also be Asian-American and would have been the first Asian-American on the court. It was her resume I read to you about the RICO statutes and all the things she has been involved in.

Sheila Abdus-Salaam, whose name I undoubtedly just was not kind to, but who is a justice of the Appellate Division who had been elected to the State Supreme Court. If nominated, according to Reuters news service, she would have been the first African-American woman on the Court of Appeals.

David Schulz, a highly experienced litigator in New York City. According to the Law Journal, Mr. Schulz would have been the first openly gay member of the court.

Now, these individuals, based on their ethnic background or personal characteristics, might have been historic. But shame on us if we demean them by stating their race, gender, or sexual orientation is what defines them. It is their qualifications that define them.

However -- and I mean this with all due respect to this nominee -- to put someone who has such narrow legal experience on the highest court of this state for 14 years -- and possibly 18 years, if the law blesses her with a long and healthy life -- and to pass over those highly qualified nominees is not something that I can support.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Senator Espaillat.

SENATOR ESPAILLAT:Professor Jenny Rivera was nominated by Governor Andrew Cuomo to succeed Carmen Beauchamp Ciparick to serve in the New York State Court of Appeals. If confirmed here today, she will be the second Hispanic woman to sit on such court.

The Governor selected Rivera, as was said by my colleague before me, among seven candidates found well-qualified by the Commission on Judicial Nomination, a panel with members appointed by the Governor, the Legislature, and the Chief Judge.

The commission, chaired by Chief Judge Judith Kaye, conducted extensive outreach in seeking applicants and its efforts resulted in the highest number of applications ever: 75, the most women applicants ever, and 24, the most minority applicants ever.

Ms. Rivera earned her undergraduate degree from Princeton University, her J.D. from New York University School of Law, and her L.L.M. from Columbia University School of Law, concentrating on constitutional theory.

Ms. Rivera is a member of the New York State Bar Association and is admitted to practice in the Supreme Court of the United States, the Third Circuit Court of Appeals, and the District Courts for the Southern and Eastern Districts of New York.

Currently she is a professor of law at the City University School of Law, CUNY. She is also the founder and director of the Law School Center on Latino and Latina Rights and Equality, which promotes law reform scholarship, public education, and litigation relating to civil rights issues facing the Latino community.

She has previously served as a visiting professor at the American University and Suffolk University Schools of Law.

She also currently serves as a member of the Second Department Judicial Screening Committee, which helps to screen applicants for judicial positions.

Prior to her time at CUNY, Professor Rivera served as an administrative law judge on the New York State Division of Human Rights. In 1993, she clerked for then District Court and now Supreme Court Justice Sonia Sotomayor. Ms. Rivera also previously clerked in the Second Circuit of Appeals Pro Se Law Clerk's Office. She also worked as a lawyer for the Legal Aid Society's Homeless Family Rights Project and as an associate counsel for the Puerto Rican Legal Defense and Education Fund.

From 2002 to 2007, Ms. Rivera served as a commissioner on the New York City Commission on Human Rights. In 2007, she worked as a Special Deputy Attorney General for Civil Rights under then New York State Attorney General Andrew Cuomo.

My colleagues, Professor Rivera is profoundly qualified. She may not be a litigator in a white-shoe law firm on Wall Street, but she is highly qualified to feel the needs and to interpret the law for millions and millions of New Yorkers that may not be as lucky as to work in a white-shoe law firm on Wall Street.

Professor Rivera is clearly committed to public service. Her work assisting the homeless and safeguarding low-income families from eviction and discrimination speaks in a very eloquent way, but it proves also the depth of her character. She could have easily chosen to earn more in the private sector, but she chose a harder path as a scholar and an advocate.

She is a legal scholar, someone that will bring a fresh and new view of the law while constructing the law within its parameters to the highest court of this state.

As a legal scholar, Professor Rivera illustrated a deep understanding of the law and her experience while she clerked under now Supreme Court Justice Sonia Sotomayor. There she reviewed decisions, motions, and she did most of the lawyering work that many across the aisle fail to acknowledge her to have the experience of.

I am proud to stand here with the New York State Bar Association, with groups from the diverse Latino community, including Latino Justice, the Puerto Rican Bar Association, the Dominican Bar Association, the National Organization for Women, and many others. Can they all be wrong? Can they all be wrong that she is qualified? She is highly qualified, and I'm here to support her nomination.

Professor Rivera's opponents may be stalling her nomination for political purposes, but the Court of Appeals presides on those issues that affect millions of New Yorkers. We need her intellect, judgment, and experience on the bench immediately.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Senator Rivera. Senator Rivera.

SENATOR RIVERA:Rivera?

ACTING PRESIDENT GRIFFO:Rivera.

(Laughter.)

SENATOR RIVERA:Thank you, Mr. President.

Colleagues, I stand here today -- first of all, Professor Rivera, I welcome you to our chamber, I welcome you and your family and your colleagues. And I stand today to proudly support this nomination, to thank the Governor for his choice for this supremely qualified person.

And I would say to my colleagues that I have a very deep, deep disagreement with you. When you say that you want, that we want the best, the brightest and most qualified: There she is.

I would say that as a Bronx resident, to me, that's what I call frosting on the cake. The fact that she is as supremely qualified as she is and, on top of that, that she is in our wonderful borough, I'm very, very happy about that. And I think that she will be a valuable addition to the Court of Appeals of the State of New York.

I do not believe, as my colleague stated, that the Governor is practicing social engineering. What I think the Governor is doing is he wants to make sure that we have a court that looks like the State of New York.

And actually I have a bit of trivia for my colleagues. What do Chief Judge Judith Kaye and Elena Kagan, who is now in the Supreme Court, have in common with Jenny Rivera? And if you can't guess, I'll give you a little bit more of a clue. What do these three women have in common with Robert Smith, who is also in the Court of Appeals? How about William Rehnquist? Earl Warren? Louis Brandeis? Felix Frankfurter?

Any and all of these folks who have served with great distinction either in the Court of Appeals or in the Supreme Court of the United States, none of these folks had judicial experience before they were nominated to either of these courts.

So what we have before us is someone that I can only hope will give us the same type of decisions, decisions that will certainly impact millions of New Yorkers for years to come. Somebody who will bring her wide experience, her broad experience, her diverse experience into better understanding of the law for the State of New York.

I proudly stand here in support of this nomination and ask my colleagues to do the same.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Senator Breslin.

SENATOR BRESLIN:Thank you, Mr. President.

I stand here as a member of the Judiciary Committee, a member for over 16 years. And I firmly believe that this candidate received more scrutiny, more review, than any candidate I have seen in those 16 years. And it is my conclusion that she passed every test in a tremendous way.

You know, we've heard repeated and repeated that coming from Puerto Rico, Hispanic parents, going to I believe St. Michael's School -- we never, no other candidates got back into the grade and high schools -- on to Princeton, to NYU, to Columbia for a master's, nine years of practice, years as a professor at CUNY, two other stints as a visiting professor elsewhere, a commissioner of human rights for the City of New York appointed by Mayor Bloomberg, working for the Attorney General in the Civil Rights Division, supervising lawyers, an administrative law judge, a clerk to Sonia Sotomayor, and on and on and on.

And then, the culmination of that, over five hours of testimony before our Judiciary Committee. That's when I really saw a performance, a performance of professionalism, a performance of, as I referred to it then at the Judiciary Committee, the patience of Job, to endure repetitive questions over and over and over, where I came to the conclusion that I have not seen someone with the kind of full and total background of human life experiences, of education, professional experiences, who is more qualified for the Court of Appeals.

And I believe that we will look back at this day as one of the most wonderful days, because I think that Jenny Rivera will prove to be one of the greatest of our Court of Appeals judges. And I am very proud to say that this may be the best decision I've made in my 16 years on the Judiciary Committee by fully supporting the candidacy of Jenny Rivera for the Court of Appeals.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Thank you, Senator Breslin.

Senator Perkins.

SENATOR PERKINS:Thank you very much for this opportunity.

I first want to take a moment to acknowledge someone that is near and dear to me who joins us today, and we served together in the City Council, Councilmember Bob Jackson. I just want to recognize that he's here with us. In fact, he sits with Jenny Rivera, and wanted to make sure that he was here during this historic moment in her support.

He also happens to be a part of a group of crazy guys that run around doing marathons in New York City.

But you know, there's this notion of the old boys' network that keeps coming up in these discussions. Which I'm concerned about because, you know, it comes up -- I mean, social engineering, which for me is another term for the old boys' network. You know, and nobody seems to have had a concern about that.

And I recently received a letter from a friend of mine from the old boys' network, someone who I attended school with at Brown University, sort of the breeding ground of that network. And he sent me a letter in support of Ms. Rivera.

I'm not going to read it all, but I just wanted to sort of bring forward the summary, the concluding sentence. And he says: "Jenny Rivera would bring to the Court of Appeals her keen intellect, insightful legal scholarship, and a commitment to equal justice for all New Yorkers. We believe that her overall experience will serve the State of New York well as associate judge."

This individual happens to be the president of the New York State Bar Association, Seymour W. James, Jr.

So it would seem to me that if someone of such outstanding legal experience and background -- similar to that which many of you who object to her have -- could find her so well-qualified, then I can't disagree. And I can't imagine why anybody else would disagree, except for the fact that perhaps she's not from the old boys' network. And that's the type of social engineering that we can't accept.

So I just wanted to make sure that I stood in support of her and would hope that my colleagues do the same.

ACTING PRESIDENT GRIFFO:Senator Smith.

SENATOR SMITH:Thank you very much, Mr. President.

And thank you, colleagues, thank you, Senator Klein, for the nomination of Jenny Rivera. And I thank all my colleagues who have spoken before me, and so eloquently, in terms of her background.

In particular, Senator Gustavo Rivera went through a litany of justices that have been on the bench and served with distinction that had no prior bench experience. And while I believe you heard him, I just want to underscore those names again because of the level of prominence they've reached in the legal profession.

We all know about Justice Earl Warren, we know what bench he sat on all. We know about William Rehnquist -- probably one of the major forefathers and authors of legal precedence that many of you have followed and used cases and decisions to determine your legal argument -- as well as the person who served as chief judge, Judith Kaye, who was very near and dear to so many of us. None of which served on the bench prior to being on that high court.

But you know, more importantly, I had a quick moment this weekend -- and I'm just bringing in my little life experience -- and you know we had bad weather. I was down shoveling snow and did my neighbors' and everything else. So after I was all said and done, I didn't have nothing to do, I didn't go out to do any political work because there was a lot of snow and stuff, nobody was meeting. So I watched a movie.

And after I saw this movie -- I'm not going to get into what it was -- but what happened during the movie is an individual went through a tremendous amount of ordeal in pursuit of what they thought was their career and what should happen toward the pinnacle of it. And as they went through all these trials and tribulations, I thought about the hearings, I thought about some other stuff. And there was one profound statement that was made, I guess somewhat in the middle of the movie and at the end, and it was a simple three words. It said "It is time."

So I say that to my colleagues today: It is time. Jenny Rivera, clearly -- someone who graduated from Princeton, NYU, Columbia -- it is time. Somebody who clerked for Sonia Sotomayor, somebody who's a professor at CUNY Law School, served as Deputy Attorney General for Civil Rights, my colleagues, it is time. Someone who also has the distinction of understanding the relationship and the nexus between the legal profession and common law in everyday existence. My colleagues, it is time.

So I'm honored to stand here today, Judge Rivera, if I can be so presumptuous, and thank you for your willingness to serve on this bench, which is not an easy thing to do. The decisions that you will face are very critical and they will dictate the future of this state.

But I say to the Governor, I say to Senator Klein, to Senator Bonacic, you're doing the right thing today, because it is time.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Thank you, Senator Smith.

Senator Krueger.

SENATOR KRUEGER:Thank you, Mr. President.

So my colleagues have gone over in broad detail the incredible qualifications of Professor Rivera. And I actually as a politician usually explain that I don't get involved with endorsing people for judge. What do I know about being a judge? I'm not even a lawyer.

But I have gotten letters and calls from almost everyone you can imagine who represents different fields of law -- private law firms, corporation counsel, deputy mayors, organizations who in fact specialize in evaluating judges. So I have no questions about Professor Rivera's qualifications.

So I just wanted to stand up and say I know Professor Rivera from when she was starting out with the Legal Aid Society and then the Puerto Rican Legal Defense and Education Fund back in the '80s, when we were both much, much younger.

And so on top of her being an amazingly qualified candidate to be sent to us for confirmation today, she is also an incredibly solid human being who cares about the people of this state, who will never do anything but make us unbelievably proud as a jurist on the highest court of New York State, because her entire career -- before I think she ever imagined being a law professor or moving to the bench -- her entire career has been one committed to the people of New York State, making sure they have the opportunity to be protected under our laws and that our laws are upheld at the highest and most complicated standard.

So a little bit in advance, I want to thank Professor Rivera for what I know will be an amazing career on our highest court.

Thank you very much. I vote yes, Mr. President.

ACTING PRESIDENT GRIFFO:Senator Diaz.

SENATOR DIAZ:Thank you, Mr. President.

I'm going to follow Bill Perkins' lead by recognizing members of the Legislature that are here. And over there we see Assemblyman José Rivera and Assemblywoman Carmen Arroyo. So they are here, I could imagine, or I imagine, supporting the nomination of Jenny Rivera.

I remember when George Bush was the president, and I remember that he nominated two judges, Hispanics, Alberto Gonzales and Miguel Estrada, a Republican president nominating Hispanic judges.

And I remember how the Democratic Party and how the members of the Judiciary Committee in the Senate jumped all over those candidates. I remember how badly criticized were those candidates by the Democratic Senate because they were nominated by a Republican president.

But I also remember -- no, I don't, no. No, I don't remember, I don't remember the Hispanic community, the Hispanic media and the Hispanic elected officials rising up to defend those well-qualified judges. But because they were nominated by a Republican president, and maybe because they were Republican, the Hispanic pride, the Hispanic heritage was neglected by everyone. Nobody cares.

I am a Puerto Rican, born and raised in Bayamón, in Barrio La Cuchilla, Bayamón, Puerto Rico. And I live in Bronx County. And if you want to appoint, if you want to nominate, if you want to get a good judge of Hispanic descent, come to the Bronx. We have plenty. Well qualified, with a lot of experience, with all the qualifications that will make us in the Hispanic community proud.

See, when President Obama nominated Judge Sotomayor, that was a hit. Everybody jumped, and that was really because he got the best in the community.

In the Bronx we have Luis Gonzalez, with a lot of experience. Puerto Rican, like me. In New York City we have Rolando Acosta. Dominican, like you {to Senator Espaillat}. We have, in New York City, Judge Faviola Soto, the first Dominican woman to be elected to the Supreme Court. In the Bronx we have Sallie Manzanet. We have Nelson Roman, Lucindo Suarez, Ruben Franco, George Villegas. We have plenty in the Bronx.

So when anyone stands up and questions and ask questions why, members of my community jump and say that's racism, that's discrimination.

That was a good move by Governor Cuomo. You know, Governor Cuomo is the one winning here. It's good for his presidential ambitions, because he put the Hispanic media and the Hispanic community and leaders to fight against non-Hispanic and against the Republicans, saying "Oh, the Republicans."

This is not about Republicans. This is not about Dominicans. This is about the best in our community. This is what is best what is something -- see, Judge Rivera will be appointed today. She will be appointed, there's no question about it. The only question is that all the media and everybody is talking about if she is or is she not qualified, if she's a judge, if she worked only one year for Judge Sotomayor, if she has all the credentials. And she will be appointed.

But that's uncalled for. Because we have judges in our community that could have been appointed, and none of it has happened. None of it has gone through.

I was a member of the Judiciary Committee for many years until this year that -- Sampson appointed me to the Judiciary Committee, and I was a member of the Judiciary Committee until this year that my new boss removed me. It was you, Mike Gianaris. Somebody removed me from that committee. That's okay. I've been kicked out of better places in my life.

So, ladies and gentlemen, whatever happens here today -- and I'm pretty sure that Judge Jenny Rivera will be nominated -- we all have to know and the people have to know that there is nothing wrong, nothing wrong by questioning, by saying what is your credentials, you should be a better candidate or should have done other or whatever.

So I am not taking this as an act of racism or discrimination or Republican -- because I -- I was hurt and angry when George Bush appointed Alberto Gonzales and Miguel Estrada and none of the Hispanic community, none of the Hispanic newspapers, none of the Hispanic media came to defend those judges.

So today the Governor has achieved something very important. All the Hispanic media, even Channel 47 {in Spanish} is here. And tonight the Governor is going to say, Oh, a triumph.

If the Governor wanted -- if the Governor really, really, really wanted a Hispanic, Luis Gonzalez, Rolando Acosta, Faviola Soto, Sallie Manzanet, Nelson Roman, Lucindo Suarez, Ruben Franco, George Villegas would have gone through, smooth, through the committee. I'm pretty sure that Senator Bonacic and the members of the committee would not have questioned them as they did to Jenny Rivera.

So, ladies and gentlemen, stop the nonsense and stop this pitting communities against other communities. And there's nothing wrong about questioning people. Questioning credentials or questioning experience.

To Judge Jenny Rivera, I wish her well. She will be appointed today. And to those of you that has come all the way from the city and from all over to support her, where were you when George Bush nominated Alberto Gonzales and Miguel Estrada?

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Senator Adams.

SENATOR ADAMS:Thank you, Mr. President.

You know, I'm going to thank Senator Perkins and Senator Rivera for their comments, because it made me think of two points in my law enforcement career.

The first was when I was a rookie and I walked inside the precinct and I saw the officers who were there, they were walking, and they would kick the side of the soda machine and get a free soda. And I saw this for about a week. And then one day I came in, I kicked the machine, I got a free soda. The next day a repairman was there fixing that machine.

And then I think about Police Commissioner Bernie Kerik. Mayor Giuliani appointed him. He had a high school equivalency diploma, jumped over all of these experienced men and women because Giuliani felt he was the right person.

This term "experience and qualification" is something that's defined by others and not the person who's making the decision who they want to sit on the court.

The Governor decided. He made the determination based on what he believed is needed to make the court the type of court that we need to move into the new century.

Those old schools of thought that are looking down on people because they say they are community organizers that rise to become the president, that look down on people who have everyday experience in their homes -- I think street credibility counts for something.

That may not fit your criteria in experience. But I think a person who walks a beat, a person who grew up in public housing, a person who had to go through the grueling task of rising to the point where they are -- if you look under Judge Rivera's fingernails, you will see the dirt and grime of climbing up the mountain of opportunity one hand at a time. Many of you, your family members have done the same thing.

This is the right choice. I support that choice. And I'm sure members here on both sides of the aisle know this is the right choice. She will do this state proud.

Congratulations to you, Judge.

ACTING PRESIDENT GRIFFO:Senator Squadron.

SENATOR SQUADRON:Thank you very much, Mr. President.

Look, this has been talked about extensively today and over the extensive hearings. Professor Rivera's qualifications are in fact stellar. Her professional experience, from serving with great distinction as the head of the AG's Civil Rights Bureau to years focusing on civil rights law and civil litigation, is critically important.

This idea that suddenly the number of trials that you've gone through is the qualification is in conflict with the way that we always choose and measure judges.

But there's one other point that I want to make that hasn't been made today. Professor Rivera grew up in my district, in a place called the Baruch Houses, which is a public housing development in the heart of the Lower East Side. And let me tell you, it's a tough place. It was a tough place when Professor Rivera was growing up, it's still a tough place today.

People don't come out of Baruch Houses and have the career that Professor Rivera has had just by skating by. That is not a thin qualification. It is an extraordinary personal story, and a meaningful one.

The fact that Professor Rivera came from the heart of the Lower East Side, came from a tough public housing development and has had the career she has and has now been nominated and put forward by the Governor to serve on the state's highest court, is in and of itself, in addition to the other qualifications, an important one. And it is an inspirational one.

And so I hope that today, while we're all up here making our speeches, there are kids on the Lower East Side, there are kids in Baruch Houses and the other public housing developments, kids whose parents have just come here from lands far away, who are watching. Because it's not easy, and you have to have an extraordinary work ethic and some pretty extraordinary talent, as Professor Rivera shows. But it is possible to rise from that place, from that tough, tough life on the Lower East Side to the state's highest court.

It's a wonderful moment, and one that I hope many kids across the state and certainly on the Lower East Side will take to heart.

Thank you, Professor Rivera, for that experience. Thank you for serving. Thank you for agreeing to serve. And I look forward to voting aye for your nomination.

Thank you, Mr. President.

ACTING PRESIDENT GRIFFO:Thank you, Senator Squadron.

Senator Serrano.

SENATOR SERRANO:Thank you very much, Mr. President.

I rise in support of the nominee. And I won't repeat so much of what's already been said.

But in looking over the qualifications of the candidate, what strikes me is the amount of experience, grassroots legal experience, that the nominee has. And to me, that is something that sets her apart, something that helps her to understand the very people and situations that she will eventually be sitting in judgment of.

Because it won't be numbers, books or accounts that she will be sitting in judgment of, it will be humanity. It will be real situations. And her experience, her resume speaks to the level of humanity that she has and that she's experienced over the years.

So I stand in support because I believe she'll be a tremendous judge and she will excel on the Court of Appeals.

Thank you.

ACTING PRESIDENT GRIFFO:Thank you, Senator Serrano.

Senator Sampson.

SENATOR SAMPSON:Thank you very much, Mr. President.

I rise in support of this nomination. And when I see Professor Rivera, I see a woman who has a wealth of life experience, someone who may have been born in poverty but did not stay in poverty. Someone who educated themselves to the point where she has been nominated to the Court of Appeals.

And, you know, I respect my colleague Senator Bonacic, the chair of the Judiciary Committee, because he really takes these nominations, these appointments very seriously. And we're looking to make sure that we get the best and the brightest on the bench.

And, you know, when we talk about social engineering, to me it's not social engineering, it's called diversity. It's about making sure that we have a body that is reflective of all people in the State of New York.

We can talk about experience. You know, the bottom line is this. When you're a justice, associate judge on the Court of Appeals, you have three things that you look at: Merit, the rule of law, and precedent. That's what you base your decisions upon. You can be a professor in academia, you can be a litigator, but most of all, if you do not have the ability and understand that irrespective of your background, irrespective of your ideology, we're taught that you guide on three principles when making a decision. And these decisions have to be based upon three principles.

And I can understand my colleague's concern about the question of judicial activism. But when you're a professor, you always want to provoke thought in all of your students. You want them to -- and we all have that opportunity, especially as litigators. Especially, we look for something that's not there so we can represent our clients to the fullest extent.

So, Professor Rivera, I want to commend you on doing something that a lot of people have had the opportunity to, but you have excelled about that, and that is making sure you never forget where you come from.

So I want to thank you, because you could have went to a white-shoe law firm, you could have been a partner in one of those big law firms. But you chose to be a professor who understands it is important to shape the minds of the young people that we are looking forward to represent us throughout this state and throughout this country.

So I just want to congratulate the nominee on hopefully her appointment to the Court of Appeals.

Thank you very much, Mr. President.

ACTING PRESIDENT GRIFFO:Senator DeFrancisco.

SENATOR DeFRANCISCO: Yes. Sometimes we lose sight, I believe, of what the purpose of our being in a particular position and what our responsibility is. And sometimes in this job emotions are high on both sides of an issue. But each one of us, I believe, is trying to make a decision in good faith based upon what the issue may be.

In this case, the issue is whether or not this individual should be confirmed as a Court of Appeals appointee. Nothing more, nothing less. And the responsibility of the State Senate and each Senator, based on his or her particular feelings, is to make a determination on that point.

Now, there's been much said about a woman who had a dream and came from the public housing and had all of this background, in the trenches on the issues that she dealt with. But I kind of think -- I may be wrong, because I hadn't talked to any of these people -- but the other potential nominees, Sheila Abdus-Salaam, I think she probably had a dream at one time in her life too, to become a member of the highest court of this state.

Or how about Rolando Acosta? I think he probably had a dream sometime -- I don't know where he came from or what his upbringing was -- to become a member of the highest court of the State of New York.

And I can go through the entire list, or the list of individuals that Senator Diaz mentioned. I'm sure they had a dream. And I'm sure their circumstances growing up were probably difficult as well.

Now, that's all very interesting, and it's all something that people can consider. But it seems to me that this appointment to the highest court of the state, you've got to pick the best possible and confirm the best possible candidates for that particular position. No matter what their aspirations during their lifetime may be, but what they have accomplished during their lifetime.

And with a Court of Appeals judge, it's not just deciding issues on what you've studied in one narrow area of the law. The broader the experience or the judicial experience that you have bodes well for you in getting that nomination, I thought. I thought.

Now, I think what people who happen to be -- including myself -- who happen to be voting no are voting on is that this is not the best candidate, period. There's all kinds of wonderful attributes that this candidate has -- but in comparison to the other potential nominees that are out there, then that is a decision that everybody has to make.

I think if you don't have judicial experience, you at least have to have a broad range of experience in the courtroom because you're going to make decisions on a broad range of things. But that's my particular point of view.

I for one don't believe that there should be an Italian-American seat, an Hispanic seat. And then according to her own writings, is that Hispanic seat Puerto Rican, is it Mexican, is it whatever subclassifications, according to her own writing? There just isn't enough seats on the Court of Appeals to do that. But that's the way I believe. That's the way I believe.

However, if the decision is made that this is going to be an Hispanic that is going to be appointed by the Governor of the State of New York -- and that's obvious, no one can deny that -- then shouldn't it be the best possible candidate that he could appoint? And I don't think this candidate is the is the best.

Now, I hope the Governor -- I'm sure -- I don't know what he'll do, but he may take affront at my remarks. I have stood here for every nominee, whether it's for a judge, whether it's from the Finance Committee, consistently praising the Governor on his decisions because he's made some phenomenal appointments to key positions in the State of New York. The Court of Appeals position is something that we should hang very high and get the best possible qualifications.

Lastly, as a lawyer who did a lot of trial work, I struggled for years trying to interpret decisions of the court. I struggled for years. I know Appellate Division judges and trial-level judges struggle to try to interpret the writings of the Court of Appeals: What did they mean by that? What's the legal precedent mean?

And with all due respect, I've read her writings, because I haven't -- there's no judicial decisions, and I don't think they're clear. I don't think they're precise. I don't think they're going to be able to give the guidance that lower courts and lawyers will need.

So for the simple reason in this particular case, my job is to determine whether or not I believe this person should be elevated to the Court of Appeals. I do not believe so. There are many other Hispanics, many other -- and other ethnic groups that certainly are more qualified.

So for that reason and those reasons that I just mentioned, and much of what Senator John Bonacic had said earlier, I'm going to vote no.

ACTING PRESIDENT GRIFFO:The question is on the nomination of Jenny Rivera to the New York State Court of Appeals. All present signify by saying aye if you are in favor.

(Response of "Aye.")

ACTING PRESIDENT GRIFFO:Nay if opposed.

(Response of "Nay.")

ACTING PRESIDENT GRIFFO:Senator Montgomery, why do you rise?

SENATOR MONTGOMERY:I would like to explain my vote.

ACTING PRESIDENT GRIFFO:I will allow you the opportunity to speak.

SENATOR MONTGOMERY:Thank you.

Mr. President, I have personally not met Jenny Rivera, but I see her qualifications and I've heard my colleagues speak so eloquently on all of them. And I certainly appreciate the many years that she has had and the depth and breadth of her experience, so I'm happy to support this nomination.

I, having had the experience myself as an African-American woman, when you get to the certain point where it's time for you to break the ceiling or move up, they say you just didn't have the right experience, you didn't have that many years enough, you didn't have the proper experience -- there's always an excuse. This is the oldest line in the book when you don't want to vote or to allow someone to move in position.

So, Mr. President, I don't know her personally, but I am very proud to be able to stand here today in this chamber and vote for a woman who is eminently qualified to be on the Court of Appeals. I vote aye.

ACTING PRESIDENT GRIFFO:Thank you, Senator Montgomery.

Having heard the ayes and the nays, having called for them and heard them, the ayes have it. Jenny Rivera is hereby confirmed as a New York State Court of Appeals judge.

(Sustained applause.)

ACTING PRESIDENT GRIFFO:May I have order, please.

On behalf of the Senate of the State of New York, we'd like to extend our congratulations and best wishes to Professor Rivera. Professor Rivera is here today with her domestic partner, Audie Serrano, as well as close friends and colleagues from the CUNY law system.

Congratulations again, Professor Rivera, and good luck.

(Applause.)

ACTING PRESIDENT GRIFFO:May I have order in the chamber.

Senator Libous.

SENATOR LIBOUS:Thank you, Mr. President. We do have a calendar to go over.

Could we please have the reading of the noncontroversial calendar.

ACTING PRESIDENT GRIFFO:The Secretary will read.

THE SECRETARY:Calendar Number 15, by Senator Fuschillo, Senate Print 772, an act to amend the Vehicle and Traffic Law.

ACTING PRESIDENT GRIFFO:Read the last section.

THE SECRETARY:Section 3. This act shall take effect immediately.

ACTING PRESIDENT GRIFFO:Call the roll.

(The Secretary called the roll.)

ACTING PRESIDENT GRIFFO:Announce the results.

THE SECRETARY:In relation to Calendar Number 15, those recorded in the negative are Senators Adams, Espaillat, Gipson, Hoylman, Montgomery, Perkins, Squadron and Tkaczyk. Also Senator --

ACTING PRESIDENT GRIFFO:I'm going to ask for order in the house. Please leave the chamber if you're conducting business. Members, please take your seats.

THE SECRETARY:Also Senator Parker.

Ayes, 52. Nays, 9.

ACTING PRESIDENT GRIFFO:The bill is passed.

THE SECRETARY:Calendar Number 18, by Senator Marcellino, Senate Print 1519, an act to amend the Vehicle and Traffic Law.

ACTING PRESIDENT GRIFFO:Read the last section.

THE SECRETARY:Section 6. This act shall take effect on the 120th day.

ACTING PRESIDENT GRIFFO:Call the roll.

(The Secretary called the roll.)

THE SECRETARY:Ayes, 61.

ACTING PRESIDENT GRIFFO:The bill is passed.

THE SECRETARY:Calendar Number 19, by Senator DeFrancisco, Senate Print 1790, an act to amend the Navigation Law.

ACTING PRESIDENT GRIFFO:Read the last section.

THE SECRETARY:Section 5. This act shall take effect on the 120th day.

ACTING PRESIDENT GRIFFO:Call the roll.

(The Secretary called the roll.)

THE SECRETARY:Ayes, 61.

ACTING PRESIDENT GRIFFO:The bill is passed.

THE SECRETARY:Calendar Number 20, by Senator Bonacic, Senate Print 1878, an act to amend the Vehicle and Traffic Law.

ACTING PRESIDENT GRIFFO:Read the last section.

THE SECRETARY:Section 3. This act shall take effect immediately.

ACTING PRESIDENT GRIFFO:Call the roll.

(The Secretary called the roll.)

THE SECRETARY:Ayes, 60. Nays, 1. Senator Parker recorded in the negative.

ACTING PRESIDENT GRIFFO:The bill is passed.

THE SECRETARY:Calendar Number 21, by Senator Addabbo, Senate Print 1919, an act to amend the Vehicle and Traffic Law.

ACTING PRESIDENT GRIFFO:Read the last section.

THE SECRETARY:Section 2. This act shall take effect immediately.

ACTING PRESIDENT GRIFFO:Call the roll.

(The Secretary called the roll.)

THE SECRETARY:Ayes, 61.

ACTING PRESIDENT GRIFFO:The bill is passed.

THE SECRETARY:Calendar Number 23, by Senator Golden, Senate Print 2503, an act to amend the Vehicle and Traffic Law.

ACTING PRESIDENT GRIFFO:Read the last section.

THE SECRETARY:Section 2. This act shall take effect on the first of November.

ACTING PRESIDENT GRIFFO:Call the roll.

(The Secretary called the roll.)

THE SECRETARY:Ayes, 59. Nays, 2. Senators Montgomery and Parker recorded in the negative.

ACTING PRESIDENT GRIFFO:The bill is passed.

Senator Libous, that completes the noncontroversial reading of the calendar.

SENATOR LIBOUS:Thank you, Mr. President.

Is there any further business at the desk?

ACTING PRESIDENT GRIFFO:There is no further business before the desk.

SENATOR LIBOUS:Mr. President, at this time, on behalf of Senator Klein, Senator Skelos, I hand up the following committee assignments and ask that such assignments be filed in the Journal.

ACTING PRESIDENT GRIFFO:So ordered.

Senator Libous.

SENATOR LIBOUS:Mr. President, there being no further business, I move that the Senate adjourn until Tuesday, February 12th, at 11:00 a.m.

ACTING PRESIDENT GRIFFO:On motion, the Senate stands adjourned until Tuesday, February 12th, at 11:00 a.m.

Senate adjourned.

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