Hochul v. Democrats: A Court Battle Plays Out in the N.Y. Senate

ALBANY, N.Y. — For a state capital known for its dysfunction, the path to nominating the state’s top judge has normally been a rare kumbaya-like exception.

Not this year.

Gov. Kathy Hochul’s choice of Justice Hector D. LaSalle has led to a messy civil war among Democrats, with many left-leaning lawmakers in the State Senate opposing the choice because they believe his decisions reveal a moderate, if not conservative, stance on bellwether issues like unions and abortion access.

The ugly fight is expected to come to a head on Wednesday when Justice LaSalle comes before the Senate Judiciary Committee for a full hearing, the first time he will speak publicly since emerging as a political flash point in Albany.

At the conclusion of the hearing, the 19-member committee, made up mostly of Democrats, will determine whether to block or proceed with Justice LaSalle’s nomination to the state’s highest judicial post.

The stakes are unusually high: The State Senate has never rejected a governor’s pick for chief judge, who in addition to leading the Court of Appeals also runs the state’s vast and complex court system.

But Justice LaSalle, who would become the first Latino chief judge, faces an uphill climb. He is opposed by several unions, reproductive rights groups and community organizations and does not appear to have enough votes among Democrats who control the State Senate.

Justice LaSalle’s supporters have argued that his record has been misconstrued and that the cases that have been singled out have hinged on procedural questions, and were decided by majority opinions that he did not write.

They have pushed back against characterizations that Justice LaSalle is conservative and have argued that he is an experienced administrator who could help reduce case backlogs and would increase representation on the bench.

Justice LaSalle is the presiding justice of the Appellate Division of the Second Judicial Department of the New York State Supreme Court, which handles civil and criminal appeals from Brooklyn, Queens, Staten Island, Westchester County and a half-dozen other counties.

He was considered among the more moderate potential nominees from a list of seven candidates Ms. Hochul was given to choose from by a special commission. If confirmed, Justice LaSalle, a former prosecutor who is of Puerto Rican descent, would serve a 14-year term and would succeed Janet DiFiore, who resigned last year.

Even if the committee of 13 Democrats and six Republicans rejects Justice LaSalle, there’s a chance that the clash over his nomination could end up in the courts. The governor and some of her supporters have argued that a committee vote is irrelevant and that, in their view, her nominee must be subject to a full vote on the Senate floor.

“I’m willing to do everything I need to do to get it through the committee,” Ms. Hochul, a Buffalo-area Democrat, said last week when asked if she was considering suing after she raised questions about the constitutional process for appointing judges.

A floor vote could arguably favor Ms. Hochul, who would have greater flexibility to cobble together enough votes from Democrats and even some Republicans in the minority to confirm Justice LaSalle.

The State Constitution says that a governor must make judicial appointments with the “advice and consent of the Senate.” Ms. Hochul, as well as Jonathan Lippman, a former chief judge who retired in 2015 and supports Justice LaSalle, has interpreted that to mean that the entire Senate, not just a committee, must vote on her nominee.

Senate Democrats, as well as other legal experts, argue that the Senate has the authority to determine its own rules and procedures to consider judicial nominations, especially since the Constitution does not explicitly say a nomination must be voted on by the full State Senate.

“I go with the Senate on this one,” said Richard Briffault, a professor at Columbia University and an expert on state constitutional law. “The Constitution doesn’t specify any particular procedure the Senate is supposed to use, so that means, in my view, the Senate can use whatever procedure it wants.”

The hearing in Albany is scheduled to begin at 10 a.m. Wednesday. After Justice LaSalle gives his introductory remarks, each lawmaker in the Judiciary Committee will have 10 minutes to ask him questions, plus an additional three minutes each during a second round of questioning. They are expected to vote on Wednesday shortly after the hearing.

Lawmakers are expected to question Justice LaSalle broadly on his independence and his judicial philosophy, but also on specific appellate cases where he joined the majority opinion and which his detractors have said are troubling, accusing him of being anti-union, anti-abortion and anti-due-process.

Some unions, for example, have objected to a 2015 defamation case where Justice LaSalle and a majority of the appellate court held that while state law prohibits companies from suing unions and their representatives for labor-related activities, such lawsuits are allowed if companies can show that the representatives were acting in their personal capacity.

Despite pressure on her to withdraw her nomination, the governor has forcefully defended Justice LaSalle in recent days, stressing the need for Latino representation at the top levels of state government and arguing that he has been “so horribly maligned based on a handful of cherry-picked cases.”

Over the weekend, the governor was joined at a rally in the Bronx by a cohort of top Democrats, including Representative Hakeem Jeffries, the U.S. House minority leader, who spoke in favor of Justice LaSalle.

On Tuesday, the Partnership for New York City, an influential business organization, emailed its members calling on them to contact their state senators, or state senators they have contributed to, to urge them to support Justice LaSalle, according to a copy of the email obtained by The New York Times.

“Governor Hochul will call for a vote by the entire Senate (including Republicans) regardless of what happens in the Judiciary Committee,” the email said. “State senators need to hear from constituents that the courts must not be politicized, and we must preserve a merit-based judicial selection process.”

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