Judge Carmen Beauchamp Ciparick: a glimpse into the senior associate judge's judicial philosophy through her dissents.

• Jurisdiction: United States
• Date: 22 March 2010
• Author: Kasow, Jillian

1. INTRODUCTION

   A study of New York State Court of Appeals Senior Associate Judge Carmen Beauchamp Ciparick's dissents unveils a liberal jurist who supports "claims of civil rights, liberties, equal protection, government-provided assistance or protections, [and] rights of the criminally accused." (1) Although the extent and degree of her liberal favor has evolved during the course of her sixteen-year tenure on the bench, (2) Ciparick is still perhaps the most liberal judge voting on the Court today. Her voting pattern, opinions, dissents, and public statements indicate that she views the judiciary as a necessary protector of these rights; these sentiments are memorialized in her rulings on issues concerning constitutional infringement by the executive (3) and the legislature, (4) institutional mechanisms such as arbitration, (5) police power, (6) and criminal prosecution. (7)

   The purpose of this article is to provide a window into the judicial philosophy and principles that drive Ciparick's jurisprudence on New York State's highest bench. This comment will begin with a contextual background pertinent to understanding Ciparick's judicial ideology, including a discussion on notable jurisprudence that distinguished Ciparick early in her judicial career. The discussion will then progress to an analysis of Ciparick's voting patterns, focusing specifically on Ciparick's dissents as a primary indicator of judicial philosophy and principles.

2. BIOGRAPHY

   Ciparick is the daughter of two Puerto Rican immigrants. (8) She was born in New York City on January 1, 1942, and grew up in Washington Heights. (9) For her undergraduate degree, she attended Hunter College of the City University of New York. (10) Ciparick subsequently worked as a teacher during the day while attending law school at St. John's University School of Law in the evenings. (11) She received her J.D. degree in 1967 and immediately began work at the Legal Aid Society in the Bronx. (12) Thereafter, Ciparick was employed in a number of positions in judicial administration, first serving as assistant counsel for the Judicial Conference of the State of New York and then as chief law assistant of the New York City Criminal Court, (13) after which she served as counsel in the Office of the New York City Administrative Judge under Judge David Ross. (14) In 1978, Ciparick was appointed by Mayor Edward Koch (15) to serve as a judge of the New York City Criminal Court, where she held the position for four years. (16) She was then elected to the state supreme court in 1982, where she stayed until her appointment by Governor Mario M. Cuomo to the New York State Court of Appeals in 1993 and subsequent confirmation by the state senate in 1994. (17) Upon commencement of her tenure, Ciparick would hold two diverse distinctions: as the first Hispanic and the second woman to serve as a judge on the New York State Court of Appeals. (18)

3. NOTABLE JURISPRUDENCE BEFORE APPOINTMENT TO THE NEW YORK COURT OF APPEALS

   By the time of her nomination to the Court of Appeals, Ciparick had earned a reputation for being "fearless," "personable," (19) and "independent." (20) Ciparick gained favorable public attention for her diplomacy while presiding over Mercury Bay Boating Club, Inc. v. San Diego Yacht Club. (21) The case involved a dispute over whether the American sailing team had violated the rules of the prestigious America's Cup when it used a catamaran in the competition; (22) the dispute was heated and produced "patriotic outbursts across the country." (23) Ciparick ultimately ruled against the American team while appeasing impassioned spectators in the courtroom. (24) Her diplomacy was described as "completely in character," (25) and she was widely regarded as possessing a temperament commensurate with appellate-level jurisprudence. (26) Although her ruling would be overturned by the state's highest court, (27) Ciparick became known for her "[g]race under [p]ressure" while "going out on a limb on an issue in which she strongly believe[d]." (28)

   Before her appointment to the Court of Appeals, Ciparick authored a number of significant opinions in support of "the individual [as well as the view of] the constitution as a shield with which the judiciary can protect the state's citizenry." (29) Among the most notable of these was her opinion in Hope v. Perales, where Ciparick ruled that the denial of abortion costs in government-subsidized prenatal care was unconstitutional. (30) In her own words: "[t]he right of a pregnant woman to choose an abortion in circumstances where it is medically indicated is one component of the right of privacy rooted in the due process clause of the New York State Constitution." (31) Ciparick further reasoned that services enumerated within the list of covered prenatal care were based "on conduct," and "not need," which forced women already made vulnerable by their financial dependence on state-provided care into a "state preferred choice of childbirth." (32) This ruling, too, would be overturned by the Court of Appeals. (33)

   The Hope opinion alone sparked heated opposition during her lengthy confirmation hearing, (34) which even prompted the senate judiciary committee, in an unprecedented move, to break for "due reflection" after the hearing and before voting. (35) The committee openly questioned her views on abortion, her legal rationale in the Hope decision, and "her understanding of 'legislative intent' and 'separation of powers.'" (36) In response, Ciparick stated her refusal to "relitigate the case," or to discuss her personal opinions about abortion, explicitly reserving any reexamination of her decision to the appellate courts. (37) When asked whether a judge could "question the motives of the Legislature if it has made its intent clear," (38) Ciparick replied:

   If it infringes on a constitutional right, then the court must step in to protect that right [regardless of whether the problem stems from] police action, executive action or action by the Legislature. That is the linchpin of our freedoms and of our Constitution--that we must continue protecting our citizens. (39) Although Ciparick ultimately succeeded in her nomination, Senate Aides indicated that "the 34-to-25 vote was the slimmest margin of approval for a Court of Appeals Judge in memory." (40)

4. RE-NOMINATION TO THE NEW YORK COURT OF APPEALS AND THE BID FOR CHIEF JUDGESHIP

   In 2007, Ciparick was successfully appointed to a second fourteen-year term by Governor Eliot Spitzer. (41) The reappointment was notable because her second term will be cut short by a mandatory retirement age, which will force Ciparick to leave the Court in 2012. (42) Judge Ciparick's re-nomination came in the wake of a recent reappointment denial, which was rooted in the mandatory retirement age rule. (43) In 2006, Governor George Pataki denied Judge George Bundy Smith's reappointment, noting that the judge's reappointment would leave the seat vacant in just over one year, pending a mandatory retirement age requirement. (44) The denial was politically motivated. Republican Governor Pataki was "eager to leave a lasting legacy on the Court" before the upcoming end of his own term; he also feared the appointment powers of a presumed Democratic successor (Eliot Spitzer was identified at the time as the likely candidate). (45) Although many feared that this denial "would harm the merit selection process if a respected judge with outstanding credentials were denied reappointment because of political considerations," (46) Governor Pataki declined Smith's reappointment and appointed Judge Eugene F. Pigott, Jr., instead.

   The appointment, nonetheless, left the panorama of the bench without one African American face in attendance. (47) Following her own re-appointment that would last only five years, and perhaps wary of Smith's experience, Ciparick commended Governor Spitzer for supporting continued diversity on the bench and for his "willingness to reappoint judges, appointed during previous administrations." (48) Ciparick further offered that "any well-qualified judge seeking reappointment to his or her judicial post [should] be granted such an appointment regardless of political party affiliation or judicial philosophy." (49) Subsequently, in 2008, Ciparick applied for but was denied consideration for the Chief Judge position left vacant by Chief Judge Judith Kaye. (50)

5. ANALYSIS: THE DISSENT APPROACH

   A judge's dissent is the most valuable tool with which to measure his or her "strongest feelings, views, philosophies, tendencies, and ideological leanings." (51) By dissenting, a jurist has chosen to depart from the majority, and to state, on record, his or her refusal to join. (52) In so many other instances, the opportunity to write a dissent may be abandoned for many reasons. For instance, the writing of a dissent may not fit within a judge's workload, could create unwanted and unnecessary conflict within the court, might not herald the judge's principles to a large enough degree, or the issue at hand might not be sufficiently critical to warrant the added heartache. (53)

   The dissent becomes possible when a judge's inner principles are challenged to a level where formalities and compromises stand aside. When judges are "public [with] their divisions and their reasons," they "also supply information about their attitudes and their values which is available in no other way." (54) Where "[t]he directive force of a principle may be exerted along the line of logical progression ... historical development ... customs of the community ... and lines of justice, morals and social welfare," (55) the dissent becomes necessary when that line is challenged by the direction of a court's decision-making. In a dissent, the judge's voice stands alone and largely unaltered by the compromises typically made within the authoring of a majority opinion. For these reasons, dissents represent a brilliant opportunity to reflect on...