Lawsuit calls for full Senate vote on LaSalle
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Hector LaSalle, who was nominated to be the state’s next chief judge of the Court of Appeals by Governor Kathy Hochul in December, was rejected by the State Senate’s Judiciary Committee in January. On Thursday, a Republican lawmaker and member of the committee filed a lawsuit calling for a judge to order the full Senate to take a vote on LaSalle’s nomination. AP file photo by Hans Pennink
By Jacob Kaye
A lawsuit was filed on Thursday demanding that a judge order the State Senate to take a full vote on Governor Kathy Hochul’s nominee for chief judge of the Court of Appeals, three weeks after the nominee was rejected by the Senate’s Judiciary Committee in a 10-9 vote.
Though Hochul floated a lawsuit as a possibility after Senate leadership refused to bring the nomination of Hector LaSalle to a full floor vote, it ultimately wasn’t the governor who decided to take legal action.
Instead it was the ranking member of the Judiciary Committee – Republican State Senator Anthony Polumbo. The lawmaker, who represents the western portion of Suffolk County, did not vote in favor of LaSalle last month during the committee’s hearing, but voted in favor of sending his nomination to the full Senate for a vote.
The suit, which was filed in Suffolk County Supreme Court on Thursday, names the New York Senate, the 10 lawmakers on the committee who voted against advancing LaSalle’s nomination and Senate Majority Leader Andrea Stewart-Cousins as respondents.
Much like the arguments made in the ongoing public fight between Hochul and Democratic Senate lawmakers, the suit claims that the State Senate violated the state’s constitution by quashing the governor’s chief judge nominee in committee.
“As set forth below, Article VI of the New York State Constitution…requires that the Senate hold a floor vote to confirm or reject an appointment for the Court of Appeals by the governor,” the suit reads. “A vote of a mere committee of the Senate — here, the Judiciary Committee — does not satisfy the constitutional requirement of advice and consent. The Constitution does not delegate that authority to a committee.”
The suit argues that ending the judicial nomination process in committee sets a troubling precedent that would give the legislature more power over who and who does not make it to the Court of Appeals bench than the constitution defines.
“To allow a vote of ten senators to prevent the nomination from reaching the floor leads to the inevitable conclusion that if the Judiciary Committee was reduced in size by the majority leader with a vote of the caucus to only three members, two senators would effectively control who becomes Chief Judge by the simple expedient of not letting the nomination get to the floor,” the suit says.
“Further, it would insulate individual senators from any public scrutiny that a full floor vote provides, reducing the process to a small number of senators controlling the outcome,” the suit continues. “This is the polar opposite of what the Constitution requires.
The suit calls on the court to order the Senate to take a full floor vote on LaSalle's nomination.
Republican State Senator Anthony Polumbo, who serves as the ranking member of the State Senate’s Judiciary Committee, filed a lawsuit on Thursday alleging that Democratic Senate leadership violated the state’s constitution by not allowing the chief judge nomination of Hector LaSalle to be brought to the full Senate for a vote. AP file photo by Hans Pennink
Queens State Senators John Liu, Toby Ann Stavisky and Jesica Ramos, all of whom are on the Judiciary Committee and named in the suit directed the Eagle to a representative for the Senate’s Democratic majority for comment.
A spokesperson for the conference said that the respondents had yet to be served the suit as of Friday afternoon.
“It is embarrassing but not surprising that the Senate Republicans have no basic understanding of law or the constitution,” the spokesperson said.
Though she has repeatedly told members of the media that she is “weighing all options” in regard to how to proceed with LaSalle’s nomination, Hochul, who is not a party to the suit, has yet to take any definitive action.
The governor’s office declined to comment for this story.
After being presented with a list of seven chief judge candidates, Hochul nominated LaSalle, who currently presides over the busiest appellate court in the country for the top judicial position in the state in late December.
Progressive lawmakers and advocates had urged Hochul not to nominate the judge in the weeks before she ultimately did. The opposition to LaSalle only intensified in the weeks after.
A number of Senators publicly announced that they would vote against LaSalle in either the Judiciary Committee or the full Senate vote, should one be had, shortly after Hochul made her nomination.
About a week after LaSalle’s nomination, Queens State Senator Michael Gianaris became the 11th Senator to publicly announce his opposition, meaning LaSalle would only be confirmed if all remaining Democrats and all Republicans voted in favor of confirming the judge. By the time the Judiciary Committee’s hearing on the nomination was held, 14 Senators, including a handful on the committee, had said they’d vote “no.”
The lawmakers, the progressive advocates, unions and organizations that had come out against LaSalle pointed to a number of past judicial decisions he had either issued himself or signed onto that they said troubled them.
They had also expressed concern that LaSalle would lead over the same conservative majority on the state’s top court that former Chief Judge Janet DiFiore had led in her tenure as chief judge.
“The outgoing chief has been deemed by many to be the worst Court of Appeals administration in modern history, and a number of us are anxious to see the court regain its stature and get back on track,” Gianaris told WNYC’s Brian Lehrer in early January prior to the hearing. “And for me, at least, Justice LaSalle seems like more of the same and a continuation – and the history and his decisions back that up.”
“LaSalle represents the status quo on this Court of Appeals,” he added.
Following the committee’s rejection of LaSalle’s nomination, a number of Democratic officials defended the choice to end the nomination there.
"I think the questions were thorough, I think the opportunity was given to have the judge explain his philosophy, and essentially, I think that he had the hearing that we said we would always provide,” Stewart-Cousins said after the vote.
Committee Chair Brad Hoylman-Sigal ended the four-hour hearing by announcing the Democrats intention to not send LaSalle to the full Senate. His announcement led to a brief and tense exchange between Hoylman-Sigal and Polumbo, who attempted to bring LaSalle’s advancement up for a vote in the final moments of the hearing before the chairperson gaveled the meeting to a close.
“I think it’s clear in the Constitution that the state Senate is within its powers – as is the state Assembly – to set its own rules on how we proceed with both legislation and nominations and we use a committee process, and that's what we did yesterday,” Hoylman-Sigal said the day after the hearing. “The nominee was rejected, and the full Senate has, as a result, spoken. Nothing makes it to the floor that doesn’t go through the committee first. We have rejected the nominee.”
But beyond Hochul, LaSalle also has had his supporters, including a number of former Latino elected officials, judges and lawyers who formed the group Latinos for LaSalle shortly after his nomination.
Carol Robles, a member of the group and a former attorney in the Bloomberg administration, said in a statement on Thursday that Latinos for LaSalle was in support of the Republican-led lawsuit.
“As Latinos for LaSalle has continuously argued, New York’s state constitution requires that Justice LaSalle’s nomination receives a full Senate floor vote,” Robles said. “It is critical that Justice LaSalle is afforded an up or down vote like every other previous nominee. It is our expectation that Justice LaSalle will be confirmed by the full Senate.”
The argument for a full floor vote has also been made by former Chief Judge Jonathan Lippman, who told reporters in January that the he believed one way or another, LaSalle would get consideration from the entire Senate.
“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. “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.”
Even with the lawsuit filed, the state of LaSalle’s nomination remains unclear.
The Court of Appeals, which is being led by acting Chief Judge Anthony Cannataro, is currently in session with six judges seated.
Hochul has argued that because she believes LaSalle’s nomination has not been formally ended, a new vacancy, which must first be announced by the Court of Appeals, cannot be declared.
Should LaSalle’s nomination be brought to the full Senate, his path to confirmation is not guaranteed. In addition to the 14 State Senators who announced their intention to vote against LaSalle prior to the hearing, around a half dozen others have since said they’d also reject the nomination. The judge would need 32 votes in order to be confirmed.
