CUNY Law Professor Jenny Rivera has been nominated for a position on the New York Court of Appeals. In a hearing earlier this week, some of the questioning focused on her article, An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 Wash. L. Rev 897 (2007), the abstract of which includes the following:
This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino.
This Article’s proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of “Latinos” and “Hispanics” in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.
Rivera was asked in the hearing if and how the views advocated in her article reflected how she would interpret and apply the law if a similar case came along in her capacity as a judge. She responded that her work as a scholar was just the work of a scholar, while the work of a judge is entirely different. A scholar raises questions and thinks outside the box while a judge simply follows the law. The strong suggestion is that scholarly work would have no influence at all. Watch here starting at the 1:08:55 mark:
I have seen other professor-nominees respond in the same way to this sort of questioning, and I find it a little puzzling. One one hand, I understand the reason for a nominee’s sudden conversion to legal formalism. Formalism lets the nominee draw a sharp distinction between the work of a scholar and the work of a judge: Because the judge merely follows the law, the scholar’s writing becomes irrelevant. With that said, this sort of formalist account offers neither a satisfactory account of what judges actually do nor of what legal scholars should do. For judges, the statement that they will follow the law doesn’t say anything interesting; the heart of the issue is what influences they consider relevant to determining what “the law” is. And for scholars, I would hope that a scholar’s interpretation of how to interpret the Constitution is more than just a throw-away thought experiment that even the scholar would ignore entirely if nominated to the bench.
My sense is that the extent to which a scholar’s work provides insight into their likely decisions depends on the nominee. With some, it’s an excellent indicator; with others, not so much. With that said, just as a matter of performance at a hearing, I think there’s a more candid answer than pure formalism that most nominees can legitimately use. A nominee can answer that their scholarship was directed to the U.S. Supreme Court, not lower courts or state courts. Lower federal and state court judges are bound by the U.S. Supreme Court’s precedents interpreting the U.S. Constitution, while U.S. Supreme Court Justices are not. As a result, nominees to lower federal courts and state courts can legitimately say that they will ignore their own scholarship on federal law (at least in subjects with lots of precedents on the books) because that scholarship was directed to the very different audience of the U.S. Supreme Court — a court to which they have not been nominated. I think that’s a more honest answer, although I realize that it’s much easier for nominees to rely on formalism than to get into a discussion of vertical stare decisis.