This column, from the weekly opinion piece MATTER OF FACT, first appeared on BrooklynReporter.com, the Home Reporter and Spectator dated January 27, 2023
Last month, at the end of the workweek just before the Christmas holiday, Governor Hochul announced her nominee to be the next Chief Judge of the New York State Court of Appeals. Hector LaSalle, who would be an historic addition to the state’s top court as the first Latino Chief Judge, was met with immediate criticism by many over his judicial record.
Crisis prevention centers run by anti-abortion activists that present themselves as abortion service providers were to be investigated by the State Attorney General for practicing medicine without a license. LaSalle sided with the anti-abortion side, ruling that the Attorney General was overreaching, and any investigation amounted to denying the anti-abortion activists that masquerade as abortion clinicians their first amendment rights.
Many unions immediately came out in opposition to his nomination after rulings that were viewed as hurting organized labor, including one in which he ruled in favor of Cablevision and against the Communications Workers of America, giving large companies more rights to sue union leaders.
In addition to past decisions that favored anti-abortion and anti-union causes, LaSalle was roundly criticized for a ruling in which he found that prosecutors should be able to strike prospective jurors based on their skin color. When asked about this particular decision during his January 18 hearing before the State Senate Judiciary Committee, LaSalle said he stood by it.
LaSalle was a terrible nominee and the Judiciary Committee ultimately voted to not advance his nomination, with only two of the nineteen members voting for him. But this terrible nomination was made by the governor and as of the time this column was written, she was digging her heels in and indicating she intended to triple down on this poor decision.
Her fellow Democrats in the Senate seemed to give her opportunities to take the exit ramp on this pick that was doomed from the start. The rejection by the Judiciary Committee was another chance for her to follow what is always done in this circumstance and follow protocol by beginning the process to select a new nominee, but Hochul’s statement following the committee vote indicated she was preparing to not take no for an answer.
“While this was a thorough hearing, it was not a fair one… While the Committee plays a role, we believe the Constitution requires action by the full Senate.”
Portioons of Gov. Hochul’s January 18 statement, following the State Senate Judiciary Committee’s vote not to advance her nominee for chief judge of the State Court of Appeals
To be clear, Governor Hochul has done many good things in her time in office and her election win as the first woman to be elected New York Governor was historic. She is definitely not Andrew Cuomo, but the tact she is taking on this judicial nominee certainly brings back uncomfortable feelings among many who remember his propensity to try to force through whatever he wanted, regardless of any opposition, even from his own party.
Hochul may sue her own party on the grounds that the state Constitution does not explicitly say that a committee rejection ends a nomination, in an attempt to force a floor vote for the full senate. Whether it be in Albany or in Washington, legislatures approve their own rules for conducting business and the process of nominations needing to first be approved from a committee is a standard that has existed for a very long time.
Trying to force a co-equal branch of government — including by suing leaders from her own party — to have a full senate floor vote against that legislative body’s established rules, is not a winning proposition. The separation of powers, checks and balances, are foundational democratic principles of government to prevent an all-powerful, unchecked state executive who can decide anything and everything unilaterally. Nobody believes that Hochul wants to be such a state executive, which is why dying on this hill in this way is so perplexing and, quite frankly, disappointing.
The Democrats have a super-majority in the state senate and 13 of the 19 seats on the judiciary committee, yet Hochul’s nominee could only garner two aye votes. This whole episode has been embarrassing for Hochul, increasingly so as she has pressed it further. It will only be more humiliating if she sues fellow Democrats for a last-ditch effort to keep this nomination on life support.
And if somehow she succeeds and eventually resurrects the nomination, and gets it to a full floor vote, she will need Republican votes have him confirmed. So, even if she were to “win,” she would have gone to war with her own party, while courting the opposition party, for a nominee almost nobody wants.
