Update; Posted February 10, 2023
Marking the first significant action to move the nomination of Hector LaSalle off dead center, Republican State Senator Anthony Palumbo, ranking member of the State Senate’s Judiciary Committee, filed suit Thursday (Feb. 9) in State Supreme Court to force Senate leaders to bring Judge LaSalle, Governor Hochul’s embattled Court of Appeals nominee, to a floor vote.
In the 19-page legal complaint, filed in the Senator’s home district of Suffolk County, Palumbo’s suit names as defendants each of ten State Senate Democrats who opposed the LaSalle nomination to become the Court’s Chief Judge, as well as Senate Democratic Majority Leader Andrea Stewart-Cousins.
Palumbo’s suit asserts that both the New York State Constitution and the Judiciary Law that oversees judicial appointments require a gubernatorial Court of Appeals nomination to proceed to the full Senate floor and not die when rejected by a committee.
“A vote of a mere committee of the Senate—here, the Judiciary Committee—does not satisfy the constitutional requirement of advice and consent,” Palumbo’s complaint alleges. “The (New York) Constitution does not delegate that authority to a committee.”
“A mere committee of the Senate, including the Judiciary Committee, is not empowered to ‘confirm’ or ‘reject’ a gubernatorial appointment,” Palumbo’s complaint continues. “Consequently, according to the plain language of the Constitution, the Senate is required to hold a floor vote on an interim appointment,” such as Judge LaSalle’s.
In the three weeks since the Senate’s Judiciary Committee rejected the LaSalle nomination and declined to send it to the Senate floor for a vote (see story posted below), Governor Hochul has weighed the option of bringing a lawsuit similar to Palumbo’s in order to force the full Senate to act on the nomination.
As of Friday (Feb. 10), the Governor had not commented publicly on the Republican lawmaker’s suit. But in many ways, Senator Palumbo has done Kathy Hochul a great favor; doing her dirty work for her without forcing the Democratic governor to confront directly legislative leaders of her own party.
The online publication City & State Thursday quoted an unnamed source as observing that in the paper’s words, “Hochul’s fingerprints seem to be all over the lawsuit.”
“Everything I’ve heard is that she’s stubborn and insisting on not backing down,” the source told City & State of the Governor’s position on the LaSalle nomination. “What other reason is there to drag it out?”
Though court papers are already on file, a spokesperson for Majority Leader Stewart-Cousins Thursday declined comment, claiming the Senator’s office had yet to be served. But the spokesman, Mike Murphy, got in a partisan dig. “It is embarrassing but not surprising that the Senate Republicans have no basic understanding of law or the constitution” Murphy said in a statement.
Senate Democratic leaders insist they stand on firm legal footing, and that the Judiciary Committee’s rejection of LaSalle remains the final word, leaving the LaSalle nomination, in their opinion, dead.
****
Previous Status Report: Posted February 6, 2023
At this writing, it’s been nearly three weeks since the New York State Senate’s Judiciary Committee, by a one-vote margin, refused to advance Hector LaSalle’s nomination to the Senate Floor to become Chief Judge of the New York State Court of Appeals. All of us wait… and watch.
Governor Kathy Hochul continues to weigh her options. She may take the State Senate’s leadership to court, arguing that the New York State Constitution demands a gubernatorial nominee for Chief Judge advance to a floor vote regardless of how the nomination fares in committee. Hochul has legal firepower on her side. Former New York Chief Judge Jonathan Lippman supports Hochul’s position.
But the State Senate’s Democratic leadership remains convinced that the Judiciary Committee’s rejection constitutes the final word. Both sides are dug in. Hochul declines to reveal her next move.
On January 30th, I wrote Governor Hochul, expressing my support for Judge Hector LaSalle’s elevation to preside over the Court of Appeals. Here’s what I wrote:
Governor Hochul:
I strongly support your nomination of Judge Hector LaSalle to become Chief Judge of the New York State Court of Appeals. And I urge you to take whatever steps necessary, including litigation, to bring Judge LaSalle’s nomination to the Senate floor for a vote.
I watched Judge LaSalle’s grace under pressure during his confirmation hearing January 18. I observed his command of the law and his judicial temperament, both outstanding. The criticisms leveled at him by his critics, allegations based on narrowly-drawn procedural decisions he’s made in cases chosen for their political impact, encourage one to draw erroneous inferences as to his judicial philosophy. And they distort Judge LaSalle’s opinions on the larger issues which those decisions purport to represent.
I write as a politically-active and engaged follower of the law, a Town Board member in Enfield, New York, and a person who believes that those who possess the intellect and judgment to interpret our laws should be permitted to do so and not fall victim to the partisan agendas of others. As I have written, “Hector LaSalle’s only sin is that he is not a left-wing absolutist.”
I believe that raw partisanship, ideological extremism, stands as the only reason that your party’s majority on the Senate Judiciary Committee rejected Judge LaSalle. The majority’s persistence in seeking to skew New York’s Highest Court leftward, to seek some sort of “Liberal Lion,” should not deter you in securing confirmation of a Chief Judge who would decide the law based on how it is written and render justice objectively, even-handedly, and for the benefit of all New Yorkers.
Please, Governor Hochul, do what is right. Do everything within your power to secure Hector LaSalle’s confirmation as Chief Judge of the New York State Court of Appeals.
Respectfully submitted,
Robert Lynch, Councilperson,
Town of Enfield (Tompkins County)
****
Now, the original report on the Senate Judiciary Committee’s action:
The Confirmation Battle:
Dems, call off your hunt for the next Liberal Lion
Analysis and commentary by Robert Lynch, January 24, 2023
I will be blunt. I will state the words that few, if any, New York Democrats have the courage to say as Governor Kathy Hochul’s nomination of Judge Hector LaSalle to become Chief Judge of New York’s Highest Court languishes; as it heads toward its uncertain, albeit likely and ignoble, death.
My words are these: Andrea Stewart-Cousins, you’ve become Albany’s Mitch McConnell.
In 2016, Kentucky’s McConnell stood in the path of Merrick Garland and for more than nine months blocked his elevation to the U.S. Supreme Court after President Obama had nominated the federal appellate judge to replace the late Antonin Scalia. And on January 18th, Stewart-Cousins, New York’s Senate Majority Leader, refused to schedule a Senate floor vote on LaSalle’s nomination to the Court of Appeals after the Senate Judiciary Committee narrowly refused to endorse him or to advance his nomination further.
You can argue the legislative distinctions on the margins, but only there. LaSalle’s nomination reached committee. Garland’s did not. But to variegate the circumstances ignores the common thread. Each nominee, arguably, was (or now is) a judicial moderate. Each nominee knows the law. Each has a measured temperament. Each nominee would have served us well. That should suffice.
Yet in each instance, raw, rough-hewn partisan politics triumphed—or at least appears to have triumphed—over thoughtful, open-minded deliberation. Democracy took a hit last week in the New York State Legislature. New York Senate Democrats—including our own district’s Lea Webb—should be ashamed. Sadly, they won’t be. They’ll congratulate themselves. They’ll high-five. They’ll gloat. That’s politics. That’s New York.
“The nomination was lost,” Majority Leader Stewart-Cousins said following the January 18th rejection of LaSalle in a quick, raise-of-hands vote that capped a grueling five-hour hearing during which the Brooklyn-based judge never lost his cool. “And I’m hoping that we can move forward and really work to find the chief judge that is reflective of the majority of what the conference, what New Yorkers, expect in a chief judge,” Stewart-Cousins continued, giving the signal that LaSalle just didn’t have the activist bona fides that liberals like she—and Senator Lea Webb—demand.
Ideological intransigence and political gamesmanship: Sounds a little like McConnell, doesn’t it?
And Stewart-Cousins’ admonition underscores what this Albany battle is all about. New York legislative Democrats demand a Liberal Lion to steer their progressive ship; to lead their High Court, rather than some precedent-respectful, intellectually-balanced centrist. Plainly stated, Hector LaSalle’s only sin is that he is not a left-wing absolutist. He’s not the kind of judge who—implausible and legally-infirm as the argument may go—has the guts to take on the likes of Samuel Alito and Clarence Thomas and spit them both in the eye.
For nearly a week, Governor Hochul has been weighing her options. She could always concede defeat, withdraw LaSalle’s nomination, and settle on somebody else. Or she could pick a fight. It becomes increasingly likely she will do just that. And she should.
Some scholars believe New York’s Constitution requires a Governor’s judicial nomination to reach the Senate floor regardless of how it fares in committee. If courts were to affirm that reading, the LaSalle nomination would go before all 63 Senators despite the committee’s rejection. And if it were to do so, minority Republicans could join moderate-leaning Democrats and provide Hochul’s nominee the 32 affirmative votes, the edge, which he needs.
“While this was a thorough hearing, it was not a fair one, because the outcome was predetermined,” Hochul said following the Judiciary Committee’s ten-to-nine vote that denied LaSalle further consideration. “While the Committee plays a role, we believe the Constitution requires action by the full Senate,” the Governor said.
Among the Judiciary Committee’s Democratic majority, only two that day supported Hector LaSalle’s nomination. A majority, all Democrats, opposed it. Seven Senators, six Republicans and one Democrat, would have advanced the nomination without recommendation.
Perhaps what incensed Hochul most was how Senate leadership stacked the deck against her nominee last-minute. Leadership expanded Judiciary Committee membership by four prior to the hearing. Three of the four new appointees are Democrats, each of them already on-the-record as opposing LaSalle. Majority Leader Stewart-Cousins defended her suspected committee-packing on grounds that in the wake of last year’s sweeping U.S. Supreme Court decisions, her members were clamoring for committee assignments so as to “change the trajectory” of New York’s Highest Court. Certainly, for Senate leadership, the timing proved convenient. And indeed, so far, it’s worked.
“You’d have to question why there was unexpectedly four more votes added to that committee,” Hochul said last Thursday. “I think if you look at the original composition of that committee before it was changed, there were enough votes to go forward.”
A count of legislative noses would confirm Hochul’s suspicion. And at the hearing, the committee’s last-minute expansion proved almost comical. Too few seats existed at the panel’s dais. As many as six members had to sit at a couple of improvised “kid tables” sandwiched between the podium and the press gallery.
Stay tuned as to Kathy Hochul’s next move. For now, she remains coy.
“You’re jumping ahead in your own analysis,” Hochul told reporters Tuesday in Albany after an unrelated event, according to Politico. “You will all know everything you need to know in due process and due time.”
****
If Brad Hoylman-Sigal dislikes you, he shows it. He contorts his face into a grotesque grimace, and he almost snarls his words at you. Hoylman-Sigal does not like Hector LaSalle. And during the 15 minutes he allotted to himself at the confirmation hearing last week, the Chair of the State Senate Judiciary Committee turned his questioning of LaSalle into an inquisition.
You could ask a potential chief judge many weighty legal questions. But should you consume precious time faulting the nominee, a Democrat, for years ago accepting cross-endorsement from the New York Conservative Party? For Brad Hoylman-Sigal, it mattered. It mattered a lot.
“Do you know about the Conservative Party’s agenda?” Hoylman-Sigal questioned La Salle, the chairman rattling off the Conservative Party’s alleged stands against reproductive rights, gay rights, and gun regulation. “Do you consider those to be main stream values?” Hoylman-Sigal asked.
“Main stream values? Those are values of the Conservative Party,” Judge LaSalle politely replied. “But I run as a judge…. And I make decisions based on the law and apply the law the same to everyone regardless of political party, regardless of ideology.”
That response did not satisfy the chairman. During the questioning’s second round, Hoylman-Sigal picked up where hours earlier he’d left off:
“I’m heartsick to hear that you continue to state that you would be honored to run on all the party lines that you have run on,” the chairman lamented. “As an LGBTQ person, the Conservative Party stands for everything I’m against; against my right to marry, against my ability to have kids, against transgender youth…. It’s hurtful.”
He wasn’t through: “I think, frankly, candidates should know what parties stand for.” The chairman pondered whether “willful ignorance” had led LaSalle to accept the Conservatives’ endorsement. “So frankly, I don’t know what you stand for given that party line that you took,” Hoylman-Sigal concluded.
“Senator… every statement you just made that you assigned me to the Conservative Party, I repudiate,” LaSalle responded. “I do not agree with any statement that treats you or any of your rights any different than anyone else’s. So I share your concerns for those positions.”
Compare the questioner to the respondent. Who’s the voice of reason here? And who’s just constructing a phantom platform to rationalize rejection? Who should be confirmed Court of Appeals Chief Judge? And who should the voters dispatch to the political dustbin in the next Senate election—if only they had the courage to do so? Pardon me, Senator Brad Hoylman-Sigal, but the New York Conservative Party is not the KKK. Its members are not the Proud Boys. And no, Hector LaSalle is not Robert Bork.
Mind you that back in 2008, one of two times he’d accepted both the Democratic and Conservative endorsements, Hector LaSalle also secured support from the Working Families Party, the same liberal partisans who also endorse Hoylman-Sigal. Republican Senator Jack Martins alleged at the hearing that the Working Families Party wants to legalize heroin, opioids and prostitution.
“You’re a Democrat. I’m a Republican. You are politically to the left of where I sit and certainly wouldn’t be a choice I would make to the Court of Appeals,” Martins told LaSalle. Despite that reluctance, Republican Martins voted to advance LaSalle’s nomination to the Senate floor, albeit without recommendation. Democrat Hoylman-Sigal did not.
For a Democratic Party that professes tolerance, Hoylman-Sigal’s line of questioning, his efforts to establish guilt by cross-endorsement, leave a lingering aftertaste among the few of us—the very few of us—who watched the five-hour hearing. Senate Democrats realize that most New Yorkers never saw the partisan grilling that Hector LaSalle received. They did not see a political attack machine in high gear. Nor did they witness the nominee’s grace under pressure. The bumper-sticker propaganda will resonate. The truth will be lost to the ether of apathy and inattention.
Hector LaSalle’s critics will assert that he’s anti-union, anti-choice, and unsympathetic to criminally-accused minorities. They place their accusations on the slimmest of reeds; case-specific, majority opinions to which the judge joined others on his mid-level appeals court; cases decided on the most intricate of procedural grounds, and parsing technicalities that tell us next to nothing about how LaSalle would rule as a Chief Judge. To amass their ammunition, opponents scoured the record for issues designed to play best in the only court that really matters; the court of public opinion.
The much-discussed Evergreen case (Evergreen Association Inc. v. Schneiderman), did not deal with a woman’s right to have an abortion, but rather with an attorney general’s power to subpoena a Christian-run crisis pregnancy center that had the audacity to rent space in a medical office building. And LaSalle’s alleged anti-union Cablevision decision (Cablevision Systems Corp. v. Communications Workers of America Dist. 1) involved a defamation suit granted appellate review during only its most infantile stage; before trial, even before deposition.
Partisans have assailed Judge LaSalle for his failing to dissent in Cablevision, for his not blocking a cable company from pressing suit against union activists for what they may have said as private citizens during an online town hall. This was a ruling not on the case’s merits, but on procedure alone. Moreover, while Senate Democrats are quick to fault LaSalle for his acquiescence, they care too little about the problem itself to enact legislation to cure it.
As Zack Fink of Spectrum News reported Monday, “not a single Democratic state Senator has put up a bill to remedy that decision or counter the court’s ruling—even though it happened nearly eight years ago.”
Yes, Hector LaSalle’s detractors want only the issue to wave in his face. Its solution disinterests them.
But what may trouble Senate Democrats most is Judge LaSalle’s refusal to defy precedent, to right society’s wrongs to the point of rewriting statute; to chart the progressive course after no one else steps in first. It may not be what judges are supposed to do. But it may be what Senate liberals want them to do.
Jessica Ramos, Chair of the Senate’s Labor Committee, zeroed in on an employer liability case, Campanelli v. Long Island Lighting Company, a case where a father’s lead dust contamination may have injured an unborn child while maybe still in the womb. LaSalle’s court held that the federal OSHA law’s “duty of care” did not extend to a worker’s family members. Ramos wondered why not.
“So would it be safe to say that you don’t consider a broader reading of statutes that are designed to protect people, like OSHA?” Ramos quizzed LaSalle.
“I read statutes as they’re written,” the nominee answered. “And there’s nothing in that statute that I remember… that indicated that the child would be protected under OSHA.”
LaSalle went on to say that he’d welcome a more expansive state or federal law to protect workers’ children. But this was not a hearing aimed at crafting legislation. This was a hearing choreographed to derail a judge.
Yes, a Liberal Lion is what New York Democrats truly seek. They also seek a rock star. And the search they take reaches far beyond the State Senate’s traditional role of advise and consent.
“How do you see the Court of Appeals improve its reputation?” Toby Ann Stavisky asked, the Queens Democrat recalling the memorable tenure of Benjamin Cardozo, the legendary jurist who served a century ago, first as Court of Appeals Chief Judge, and later on the U.S. Supreme Court. “How do we return to those days where people looked at the Court of Appeals, and said, Wow?”
“I think the way we do that,” Judge LaSalle replied, “is by making it accessible.” The nominee referred to his own trial-by-fire as a prime example.
“I think in time with hard work, with scholarship, and with decision-making that everyday New Yorkers can appreciate and understand, we will have the Court that you will expect to have,” LaSalle replied.
This reply from the aspirant to the Cardozo throne may not have satisfied Senator Stavisky sufficiently. She, like most other Democrats, recommended against LaSalle’s confirmation. Or then, of course, it may not have mattered. Likely the latter.
And that reaches the final point. Hanging over the January 18th confirmation proceedings was the ghost of the Chief Judge that Hector LaSalle would most immediately replace, Janet DiFiore, an Andrew Cuomo nominee, who joined the Court as Chief Judge in 2016 and resigned last summer.
Many, including Brad Hoylman-Sigal, saw Judge DiFiore, a former prosecutor, as too conservative. And with LaSalle, another former prosecutor, the chairman viewed the current nomination as a course correction lost.
“I and many of my colleagues want this Court to go in a different direction,” Hoylman-Sigal remarked early in the hearing. “But your alliance with the former Chief Judge raises some questions.”
Hoylman-Sigal asked LaSalle whether he considered DiFiore a “professional mentor.” The nominee said only that DiFiore was “a colleague and someone that I worked with.”
“Justice and fairness must go hand in hand,” Hector LaSalle told Senators at his confirmation hearing. “Our society must do better, and if I have the honor to serve in the role of Chief Judge, I will do what I can to help lead that effort, to ensure that the arc of our law bends toward greater justice.”
Hector LaSalle’s calmly-spoken, fervently-felt words should be those remembered from his confirmation hearing. Sadly, other, more strident voices will drown those words out.
****
So Hector LaSalle’s nomination is stalled. Governor Hochul may attempt to jump over the legislative barrier Majority Leader Andrea Stewart Cousins has thrown in front of her. Hochul’s reportedly retained outside counsel, Caitlin Halligan, a former New York solicitor general, now in private practice, according to Peter Sterne of City & State.
The same publication reports Stewart-Cousins is digging in her heels, and that Hoylman-Sigal is describing the prospect of a Hochul-launched lawsuit as “ludicrous.”
“How does the Court of Appeals even decide the case, when several of them applied for the job?” Hoylman-Sigal told the publication. “How does the Court of Appeals even seek enforcement? What, we’re going to have state troopers with bayonets forcing us into the chamber? I mean, the whole thing on the surface seems absurd!”
Absurd, perhaps. New York, yes. Andrea Stewart-Cousins and Lea Webb, please call off your lion hunt. And please, don’t make “Moscow Mitch” your role model.
###