The battle over New York Gov. Kathy Hochul’s pick to lead the state’s judicial branch could tumble into the very court system she wants him to oversee — if the governor or her allies are willing to sue.
Hochul, a Democrat, is facing intense pushback from some factions of her party and the labor movement for her selection of Hector LaSalle for chief judge of the Court of Appeals, a position that would not only put him on New York’s top court but also put him in charge of the state’s sprawling judicial system. Now, Hochul and the state Senate’s Democratic majority are on opposing sides of an emerging disagreement over the constitutional process for appointing judges to the top court.
At issue is whether the full Senate, not just a committee, must vote on her pick. LaSalle is expected to meet with the Senate Judiciary Committee next Wednesday for a confirmation hearing. His allies fear the committee could shoot down his nomination without giving the full chamber — where Hochul could have a better chance of convincing a broader mix of Democrats and Republicans to confirm LaSalle — a chance to weigh in.
The situation is unprecedented. Since New York changed the way top judges are selected in 1977, the Senate has never rejected a governor’s nominee — in committee or otherwise.
LaSalle’s supporters held a virtual news conference on Thursday to make their case, arguing that the state constitution is clear: The full Senate must act.
“Any other way of doing it is a threat to the constitutional design,” said former Chief Judge Jonathan Lippman, a LaSalle ally. “This appointment goes to the judiciary committee and then to the floor by constitutional and statutory design and must be ruled upon in 30 days.”
So far, Senate Democrats are holding strong. If the committee votes down LaSalle’s nomination after a scheduled hearing on Wednesday — which is a strong possibility — it does not intend on bringing it to the full chamber.
“It’s within the Senate’s prerogative to decide how to proceed with its own votes, in committee and otherwise,” said Manhattan state Sen. Brad Hoylman-Sigal, the judiciary committee chairman and a progressive Democrat.
LaSalle’s nomination in peril
Hochul’s nomination of LaSalle — the presiding justice of the mid-level Appellate Division’s sprawling second department, which includes Brooklyn, Queens and Staten Island as well as Long Island and part of the Hudson Valley — has been in peril almost from the moment she made it public in December.
A host of labor unions, including the Communications Workers of America, immediately opposed LaSalle, noting that he joined a 2015 ruling against the CWA that allowed Cablevision to forge ahead with a defamation lawsuit against two union leaders in their personal capacity — which, from the union’s point of view, scaled back protections for union leaders.
So far, at least 14 of the Senate’s 42 Democrats have publicly opposed LaSalle’s nomination. Among other things, they’ve expressed anger that Hochul selected LaSalle — a former Nassau County prosecutor — rather than someone with experience as a defense or civil rights attorney. Opponents are looking for a progressive jurist who could tip the balance of a court that currently has three liberal justices and three who lean moderate to conservative.
On the other side, LaSalle’s supporters — including influential political operative Luis Miranda — have organized a group known as “Latinos for LaSalle” in an attempt to ensure he becomes chief judge. LaSalle, who is Puerto Rican, would be the first Latino to serve as the state’s top judge.
Article VI of the state constitution says the governor nominates judges to the top court on the advice and consent of “the Senate.” The article also lays out what happens when “the Senate” confirms or rejects a pick.
From the point of view of Hochul and LaSalle’s allies, “the Senate” means the full Senate. From Senate Democrats’ point of view, a judiciary committee rejection would have the same effect as the full Senate striking the nomination down, since that’s how it would work with any other bill or nomination.
“The constitution does not require a floor vote, because in addition to the constitution, we have Senate rules,” Hoylman-Sigal said.
Committee could reject LaSalle’s nomination
LaSalle has been making individual calls to state senators ahead of his hearing in an attempt to win their support.
There are 19 members of the judicial committee this year: 13 are Democrats and six are Republicans. Of the entire panel, just two members (Democratic state Sens. Luis Sepulveda of the Bronx and Kevin Thomas of Long Island) are actively supporting LaSalle — though a majority of the committee’s members have yet to publicly reveal their positions, preferring to wait for the hearing.
Hochul’s office, meanwhile, has been pressing skeptical lawmakers on the committee to vote “aye without recommendation” — a designation that would count in favor of allowing LaSalle’s nomination to move ahead to the Senate floor, but is meant to signal the lawmaker isn’t necessarily supporting him.
I mean, surely we all have too much to do for improving the lives of New Yorkers rather than filing legal challenges to the way our respective chambers and offices operate.
Will Hochul sue?
Asked on Thursday whether she would sue the Senate if the full chamber doesn’t vote, Hochul demurred, saying she is “willing to do everything I need to do to get [the nomination] through the committee.”
“We’re going to let it run its course,” Hochul told reporters after a ribbon-cutting in suburban Albany. “I feel confident that after the committee has a fair — a fair — hearing in the judiciary committee, that the process will play out.”
Lippman, the former chief judge, also declined to entertain the idea that the nomination battle will end up in the courts.
“I don’t think [the Senate is] going to say no,” he said. “I really don’t believe that. I don’t think it’s an issue in my view.”
Hoylman-Sigal, meanwhile, said he doesn’t think Hochul will ultimately sue the Senate.
“I mean, surely we all have too much to do for improving the lives of New Yorkers rather than filing legal challenges to the way our respective chambers and offices operate,” he said.
That said, even if Hochul were to sue, Hoylman-Sigal said he believes the constitution is on the Senate’s side.
“I think it’s in plain English, and I think the governor will, at the end of the day, agree with us,” he said.