Former top judge says Senate violated constitution by rejecting LaSalle

Former Chief Judge Jonathan Lippman believes that the State Senate violated the state’s constitution by failing to bring the nomination of Hector LaSalle to the full Senate for a vote. AP file photo by Mike Groll

By Jacob Kaye

A former chief judge of the Court of Appeals – and a noted supporter of Hector LaSalle, the recently rejected nominee for chief judge – says the governor has a solid case to bring should she decide to sue the State Senate for failing to bring LaSalle’s nomination to the floor of the legislature.

Jonathan Lippman, who served as the top jurist in New York State from 2009 to 2015, said in a press briefing on Friday that he believes that the State Senate, led by Majority Leader Andrea Stewart-Cousins, violated the state’s constitution when it decided to kill Hochul’s nomination of LaSalle in the Judiciary Committee last week.

Lippman added that should Hochul decide to sue the Senate on constitutional grounds, she’ll have a solid case. Though she has yet to announce what action she plans to take, the governor recently retained an attorney and has said that she believes the Senate’s actions are unconstitutional.

“I think that the legal issues are without doubt – it should be self-evident to the Senate that they must have a floor vote,” Lippman said on Friday. “Not only is that supported by the language of the constitution and other legislation, the legislative history makes crystal clear that that's the case and the history of the 40 years since the enactment of [the amendment that lays out the judicial nomination process] makes clear that it always goes to the floor.”

The former chief judge, who expressed support for LaSalle prior to Wednesday’s hearing, called the State Senate’s showing at the Judiciary Committee hearing “unfair” and said that the change in procedure and overall probing approach to a judicial candidate’s history of decisions sets a dangerous precedent for future nominations.

LaSalle, who would become the first Latino and first person of color to serve as chief judge of the Court of Appeals should he be confirmed, was rejected by the committee after the nearly five-hour hearing on Wednesday. Ten Senators, most of whom are progressive lawmakers but some of whom are moderates, voted against the nominee. Two moderate Democrats voted in favor of LaSalle and seven committee members – six Republicans and one moderate Democrat – voted to send the nomination to the full Senate without a formal recommendation.

Following the vote, both State Senator Brad Hoylman, who chairs the committee, and Stewart-Cousins said that the nomination would not advance to the floor of the Senate for a full vote.

The nomination of LaSalle, who currently serves as the presiding justice of the Appellate Division, Second Department, was strongly opposed by progressive lawmakers and advocates, several moderate Democrats, a number of unions, women’s rights groups and criminal justice advocacy groups who said that several of his past judicial decisions concerned them.

A day after the hearing, Hochul said that she was “weighing all of our options,” when asked whether or not she’d be filing suit.

“I think [the hearing] was an opportunity for all New Yorkers to listen to an exceptionally qualified jurist who shares the values of New Yorkers, is pro–choice, pro labor, pro-LGBTQ – we had a chance to see also what shapes his decisions based on his many years of experience running the largest appellate court in the country,” she said. “I thought he did an extraordinary job and we're certainly looking at all of our options.”

As to whether or not the Senate is involution of the constitution, Stewart-Cousins holds the opposite view of Lippman and Hochul.

“This ongoing attack makes it clear that there are those that don’t accept the Senate’s role in this process, and will not be happy unless we simply act as a rubber stamp,” the majority leader said in a statement on Friday.

“This is a dangerous infringement of the separation of powers,” she added. “More and more people are waking up to the importance and impacts of the courts based on the events of the past year. This Senate takes our role seriously and we will continue to represent the best interest of the people. Justice LaSalle was rejected based on his record and after 5 hours of testimony.”

Lippman claimed that at the heart of his concern over the way LaSalle’s nomination played out is the independence of the judiciary.

“I just think that this is very important for the future of our state, for the future of the judiciary and for the future of this merit process that was laid out in the Constitution as clearly as it could be,” he said. “What's happened so far and what happened Wednesday, is anathema to that merit system and that constitutional design.”

“It shows, in my view, a lack of respect for the judiciary, and a lack of understanding of the judiciary's role in our tripartite system of government,” he added. “And I think everyone should be really very mindful of that.”

The former chief judge added that regardless of whether or not a suit is brought, he believes that LaSalle’s nomination will eventually be brought to the full floor of the Senate.

“This is not going to go away,” he said. “There is going to be, one way or the other, a full vote of the Senate because the state constitution requires it.”

But even if LaSalle is to appear before the full Senate, it’s not guaranteed that he’ll be confirmed. In addition to the 10 Senators who voted against LaSalle on Wednesday and the approximately dozen others who said they’ll vote “no” prior to the hearing, a number of Senators issued statements following the hearing expressing their concern over his record.

If he were to be confirmed, it would likely come on the backs of Republican Senators, who Hochul would have to align herself with to make LaSalle the head of the state’s court system.

“Let the chips fall where they may,” Lippman said on Friday. “If he’s confirmed, then he'll be the chief judge and if he's not, we’ll have fulfilled the constitutional design and the constitutional process.”