Politics, state constitution square off in New York chief judge stalemate
New York Governor Kathy Hochul is confronting one of her first major tests after winning a full term in November. Her pick for the state’s new chief judge, Hector LaSalle, is being opposed by a coalition of progressive groups — and crucially, more than a dozen Democrats in the state Senate. After the Judiciary Committee rejected the pick, Hochul suggested she could go to court in an attempt to force the full Senate to vote on the nomination. State Senate Leader Andrea Stewart-Cousins warns against that path. For more on the pick, WAMC's Ian Pickus spoke with Albany Law School Professor Vincent Bonventre, who has been following the twists and turns on his New York Court Watcher website.
So, before we talk about the latest in this ongoing saga, I thought we could begin by just going over what the actual job of New York's Chief Judge is.
Sure. Well, not only does the Chief Judge preside over the Court of Appeals itself, that is preside over all seven judges when they get together to decide cases. Right? But the Chief Judge is also the CEO, the Chief Executive Officer of our entire judicial branch. And you know, we have a ginormous judicial branch in New York. When you think about the hundreds, if not thousands of judicial employees, the hundreds of courts in New York, the literally millions of cases that go through the New York courts. The Chief Judge is the Chief Executive Officer. The Chief Judge is the one who runs the judicial branch of New York. It is a huge responsibility. And beyond that, the Chief Judge is the face of the New York courts. You know, the Chief Judge is the one who speaks on behalf of the courts and we've been very fortunate in New York, we've had some really astounding chief judges who put a great face upon the courts, and especially upon the Court of Appeals throughout New York State and actually throughout the country.
This opposition to LaSalle’s nomination is really unprecedented. Is the role of the Chief Judge getting more prominence in New York in recent years and decades?
Well, yes, there’s no question about that. In the past, by and large, whoever the governor chose to be the Chief Judge, or even one of the Associate Judges, was basically given a rubber stamp by the Senate. There have been a couple of exceptions in the past where there was some resistance. But there's always been a confirmation, whether it's a nominee to be the Chief Judge or the Associate Judge. The reason, of course, why there's such a tension and opposition is that there are quite a few, not only Liberal Democrats and Progressives, but other objective observers of the Court of Appeals, who have seen the court really veer off its kind of mainstream, traditional direction. Which has been a much, much more progressive court, a court that's much more protective of rights and liberties, workers’ rights, consumer rights, then the court has been the last several years. So many people, understandably, are quite concerned about what has happened to the Court of Appeals the last few years.
How does Hector LaSalle himself fit into that dynamic? He's been something, I think it's fair to say, of a Rorschach test for people looking at his record and his background.
Yeah, it's not particularly clear why there's so much opposition to Hector LaSalle because the fact of the matter is, he's got a pretty extraordinary reputation as a really fine judge, and also as a really fine administrator. And beyond that, the particular decisions of his that the opponents keep citing to show that he's some kind of a right-winger, or much more conservative than they would want on the court, really don't stand for what they're suggesting those decisions, those votes stand for. So, there's something else going on now. It might simply be that Liberal Democrats, Progressives, want somebody who's very obviously very conspicuously progressive, very conspicuously liberal, very vigorously to support civil rights and liberties, consumer rights, and workers’ rights and you don't necessarily get that, from Justice LaSalle’s records. You don't get from his record that he's some real conservative. But you don't necessarily get from his record, that he's going to be very, very progressive. He might turn out to be that way if you were actually appointed. But there's nothing in his record to suggest he is that, as opposed to, for example, the judges who are currently on the Court of Appeals, who were excluded by the Commission. Judge Jenny Rivera and Judge Rowan Wilson, for example, whose records are clearly progressive, and whose records the Liberal Democrats and the Progressives, I'm sure, would love and would think that's the direction in which the court order move. Hector LaSalle isn't so obviously so conspicuously progressive like that.
Do you know him?
I don't know him at all. I haven't socialized with him. I think maybe years ago, I met him and shook his hand, but that's it. The only thing I know about Justice LaSalle is what other lawyers have told me in the past, and other judges have told me in the past, and it's all been extremely positive. And then when I looked at his record after reading what his opponents have said, and what they have written themselves, I found out that his record actually is a very, very strong one. He writes beautifully, his opinions are very, very strong, and he doesn't have the record anywhere near that resembles what they are suggesting.
So, let's go back to something you said a moment ago, which is the commission put forward a list of seven nominees for the governor to pick from. How much of this, in our era of hyper-partisanship and intense focus on the role of the courts on the state level, but certainly on a federal level as well. How much of this do you think is just frustration with a fairly opaque process? You know, the governor gets a list. We're not entirely sure how that list was arrived at, and then she's got one of seven options.
Right. I'm so glad you asked that question because for years now, I have been complaining about the sack, not that anybody would listen to me. I've noticed the fact that when the list comes out, and you know, the law requires that the Commission provide a report on each one of the candidates that's on the list to explain their qualifications. Really, the Commission doesn't provide much more than just the resume, which you or I could look up any way. We don't really see anything from the reports, which tells us, well, this individual was placed on the list, in addition to the resume, which you could look up anyway, because we found that this individual had extraordinary administrative competence. This individual just wrote beautifully and we've seen that in these articles and these essays, or in these opinions. We don't see anything like that. We also don't see anything about why those individuals were placed on the list, as opposed to any other individuals who may or may not have applied. And I don't mean that the commission would identify individuals who may or may not have applied. But for example, why can't they tell us? Well, we put this individual on the list because we really think it's very, very important that we have administrative experience. And so, among those who applied, this judge has a great deal of experience. Well, we think it's very, very important that the court really restore its tradition and direction of being very progressive and protective of rights and liberties and this candidate has shown us that in the past. We don't get anything like that.
And these documents, interviews, transcripts, that sort of thing, these are not subject to public records law in New York state, so they're difficult to see it's over.
That's right. The work of the Commission, by law, is to be confidential. But you know, as I said to someone recently, you know, the work, for example of the Court of Appeals is confidential. What happens in conference is confidential. But that doesn't preclude the judges from actually writing an opinion explaining really in detail, why they decided a case a particular way and why they didn't decide it a different way and that doesn't preclude somebody from writing a dissent. We don't get anything that transparent from the Commission. And especially when you have a process like we just had, where several sitting members of the court of appeals, apparently applied and apparently, we know well, that they applied, they were excluded from the list. These are judges who previously were deemed to be well qualified, and they're sitting on our highest court. They were excluded from the list. And especially when these are the three who apparently are among the more progressive ones who applied for the Court of Appeals. I mean, do we want to know why they were excluded? Do we want to know why Rowan Wilson, who's brilliant or Jenny Rivera, who's extremely progressive; why these two were excluded? Shirley Troutman, who was just recently appointed to the court by Governor Hochul, who's got a great deal of respect among our colleagues. Why she was excluded from the list? We have no idea and of course, all this does is raises suspicion.
OK, so now let's talk about the potential constitutional question. Governor Hochul says the Senate should advise and consent the governor on the pick, and that means the Senate, the entire Senate, not the Senate Judiciary Committee. The Senate Leader, Andrea Stewart-Cousins, says that would be a violation of the separation of powers, to tell the Senate how to run the Senate. So, who's right?
Well, OK, the State Constitution speaks of the governor shall appoint with advice and consent of the Senate. It doesn’t say part of the Senate. The Judiciary Law, which implements the state constitution speaks in terms of the Senate shall confirm or reject, and then a vacancy shall be deemed to occur upon the rejection by the Senate. It doesn't say that some committee of the Senate or some few members of the Senate shall decide whether there's a rejection, and then go further. The Public Officers Law of the state speaks in terms of, if the Senate shall reject such nomination. Now, Senate, Senate, Senate. Are these terms open to interpretation? Yes, they are. Yes, they are. But what's the better way to read this? Well, you know, it's a pretty axiomatic rule of construction, that if the language is plain, you apply the language. Now, sometimes the plain language really would make no sense. I often say to my students, you know, the First Amendment, it's not like a provision that's buried somewhere in the Constitution. But the First Amendment says, no law, abridging free speech. No law? Well, that is what the text says. But does that mean there can't be a law prohibiting a threat to assassinate the president? No law prohibiting speech that would reveal national security secrets to Putin? Well, of course, because if we were to apply the very plain language strictly, that would result in something really absurd or dangerous. There's absolutely nothing absurd or dangerous with requiring the Senate to act and not some part of the Senate. Now with regard to separation of powers and one branch shouldn't be telling another branch what to do. Would we allow the Senate to have an internal rule saying that only members of the majority party of the Senate, got to vote? Would we actually say that? Would we say that, well, when the Senate passes a law, it only needs 30%. No, we wouldn't say that. I mean, those would present constitutional questions, right? And the governor or somebody else could complain and then the courts would have to resolve. So, is there a separation of powers issue? Yes. But if the Constitution in the States law requires the Senate to act in particular way, then I think that is an issue for the courts to resolve.
Well, what about the question of precedent, as it were, in the Senate? I mean, why have a Judiciary Committee hearing at all, if the vote should go before the whole Senate and it doesn't matter what that committee decided?
Sure. Great question. And look, there's no reason, either in the State Constitution or the state law to require the entire Senate to conduct a hearing. Right? There's nothing that precludes part of the senate, members that the Senate itself have chosen to conduct the hearings. But although the Constitution doesn't speak in terms of that, who conducts the hearing, and exactly how the hearings shall proceed, the Constitution, and the state laws very clearly speak in terms of the Senate being the body that confirms or rejects. It doesn't say that a committee or any select members of the Senate shall decide for the Senate itself whether to confirm or reject. It doesn't say that. Now look, is it possible that the State Constitution and the state laws can be construed that way? Yeah, virtually anything's possible. But I'm just saying that I think a much, much better argument is that the Senate really is the one that's responsible for taking a vote to confirm or to reject.
So, what do you think will happen?
Well, the interesting thing is that under the law of vacancy, shall be deemed to occur upon the rejection by the Senate. Now, what happens when this is a rejection by the Senate? Well, according to another state law, if the Senate shall reject the nomination, then there's got to be some notice to the governor in writing that's signed by the President of the Senate. Who is the president of the Senate? The Lieutenant Governor is the President of the Senate. So, in other words, Lieutenant Governor Delgado, is the one that's going to have to notify the governor that the governor's choice for Chief Judge has been rejected. I don't know that Lieutenant Governor Delgado is going to want to go against the governor and say, well, since the Senate Judiciary Committee has rejected the nominee, that means the Senate itself has rejected the nominee. So, I guess we're in a pattern right now. We're just going to wait and see. And that's much, much more political than it's legal.
So then to wrap up, let's go back to where we began. When Janet DiFiore resigned under a cloud, some would say, and now with this protracted process of seating Hector LaSalle, what kind of damage or challenges are being presented to the judiciary in New York without a long-term chief judge in good standing?
Well, of course, we do have an acting Chief Judge who and again, we don't know exactly how Anthony Cannataro was selected to be the Acting Chief Judge, but he is now the Acting Chief Judge, which means that he will exercise the powers of the Chief Judge. So, the judiciary does have an acting CEO right now. One of the practical consequences of there being only six members of the court, is that the court might be tied 3-3, on some of these cases. Remember, by the time the cases get to the New York Court of Appeals, like when they get to the Supreme Court, they're close. So, we might well get quite a few cases which are 3-3, at least they're 3-3 and conference, whether they come out in public to be 3-3. And then what happens with 3-3? Well, then what will happen is the courts going to have to lift somebody up from the trial level, the Appellate Division level, and vouch that judge in to cast the deciding vote. That's not a good thing when you're talking about setting precedents for the state. So obviously, we're much better off with a full complement at the court of appeals. But the other thing is, we're just waiting to see what happens legally and politically. I should add one thing, I think there actually is a silver lining around all that's been happening. That may seem in many ways to be shameful, or just plain confusing, and that is, I think many people are finally starting to understand that there actually is this court in Albany called the Court of Appeals. It's the highest court in New York and you know, if you're a New Yorker, if you live in New York, the New York Court of Appeals is a heck of a lot more important on most matters of civil rights, civil liberties, workers’ rights and consumers rights than the United States Supreme Court. So, hallelujah, people are finally paying attention.