Gov. Hochul to try again after chief judge pick is rejected
WAMC's Ian Pickus speaks with Columbia Law School Professor Conrad Johnson about the state Senate vote rejecting Judge Hector LaSalle's nomination Wednesday.
What's your initial reaction to this turn of events?
Well, you know, it kind of defies logic to see what's happened here. You have a governor who's newly elected to a full term. She is the de facto leader of the Democratic Party. She did not win by a landslide. I mean, her victory was by 5.8% of the vote. And she's entering into budget season with an overwhelmingly Democratic Senate. So it doesn't seem as though her choice to make this an issue, much bigger than it needed to be, is a logical one for the Democratic Party, for the people in New York.
But that's on the political side of things. What about in terms of LaSalle's qualifications for the job, especially compared with the other finalists for it?
Well, you know, I don't pretend to have read all of Justice LaSalle's reported decisions, but you know, reputable groups, really, across the spectrum have cast a sort of questioning light on his credentials. He's no doubt qualified in the sense that he has the experience, but his judicial record is one that raises concerns for groups like the NAACP Legal Defense and Education Fund, which came out against the appointment of the on the eve of the Judiciary Committee's hearing on Justice LaSalle, back in January on the 18th.
They're citing, you know, questions about his stance on civil rights, reproductive rights, criminal justice, reform, et cetera. And so, you know, of course, there are there are groups that have said we think he's perfectly fine and suited to it. But I think there's a bigger picture here. And that's something that I think gets lost in some of this. And the bigger picture is, involves the role that the state court, our state court, our highest state court will play moving forward in the regime where the United States Supreme Court has decidedly taken a conservative slant.
Can you say more about how you see that playing out and let's just remind listeners here that Governor Hochul now will have to go back to the drawing board to find a different nominee, evidently who would be palatable to the Democratic-led State Senate.
Right, well, you know, in answer to your first question, the Supreme Court has a 6-3 pretty solid conservative block that, you know, so far has diminished voting rights, overturned Roe v. Wade, is likely to very soon diminish if not eliminate affirmative action in education. And they have done so in part on the theory that the states have the right sort of states’ rights argument to make their own decisions, which puts a real emphasis on what our state courts can do. And we have a state court of appeals that has been divided when former Chief Justice DiFiore was there, it was typically a 4-3 split in favor of more conservative rulings. And this is, of course, not always the case, but often the case. And this puts a real emphasis on who is going to be the chief judge, because that chief judge may well become a swing vote, a very powerful one in a state that has often led the way in protecting the rights of individuals.
Let's talk about the process of getting a list of nominees to the governor. Do you think that this incident and this entire saga over the last few months shows any need for changes to how the list of nominees is arrived at in the first place?
Well, the current process has been in place since the 1970s. I think before that this was an elected office. So that's 50 years of a process that has worked without a rejection by the Senate ever before. So we're in unprecedented waters. The process involved is laid out in the Constitution, New York State Constitution, Article Six, and in the judiciary law, and it provides for the appointment of a New York State commission on judicial nominations. And that is a 12-member body that is appointed by the governor, the legislature and Chief Judge of the Court of Appeals. And so that 12-member body considers candidates, which they did in this case, they considered 41 candidates. And they came back with 17 that they wanted to interview and then they narrowed that down to a list of seven of which Judge LaSalle was one. So that's the process. I think the process has worked well up until now. And I don't see why it shouldn't work well going forward. This is a very important pick. And it should be one where people who have familiarity with the system, deep familiarity with the system, are given great weight in the process. Not complete control, obviously, but given great weight. So I think the process is fine. I think what happened here was that the process was not handled as well as it could have been.
So to that end, do you think that the Court of Appeals, the position of Chief Judge for New York State, has been weakened in any way by the Senate exercising for the first time effectively a veto over who is going to lead the Court of Appeals and the New York state court system?
I don't think the court has been weakened. I think the relationship between Democrats and the Democratic Party, the relationship between the governor and the legislature has been weakened. I think the Republicans probably are very pleased with what's happening here. And I assume they're going to continue with their lawsuit to try and say that all future nominations should be passed on by a full floor Senate vote. And it's unclear whether or not the actions that took place yesterday with a full floor vote will move that court case that was initiated on Suffolk County, but I don't think the court itself is weakened. In fact, I think it sheds light on the importance of this court, and probably more so than at any other point in its history.
Well, as I mentioned earlier, I think there is going to be moving forward a real role for this court in determining what New Yorkers are free to do in terms of their rights, in terms of the way the judicial process works in terms of the way courts operate and the like. And so and that's because of the way in which Supreme Court doctrine is evolving under a more conservative regime. And so I think it's really important to New Yorkers that they have a chief judge that reflects the role that this Court has typically played, which is as a leader in the advancement of protecting individual rights.
So what happens next?
It's not entirely clear to me that we're going to start this process all over again. The Democratic leaders think that's what should happen because this is a vacancy, which requires the state to follow the procedure that I outlined earlier, that's outlined in the Constitution and the judiciary law. But it's unclear whether the governor is going to just say, well, let's pick from the list that's already been provided by the nominating committee, the judicial commission, and so we'll have to see whether they restored it, and that itself could be fodder for a new bit of tension between the governor and the Senate.