In a shocking betrayal of her constituents, New York governor Kathy Hochul has nominated an anti-choice regressive judge to fill a vacancy on New York’s highest court, the Court of Appeals. If approved, Hector LaSalle’s appointment would result in the Court being controlled by a conservative majority for nearly a decade. Her inexplicable decision met with a combination of outrage and disbelief:
New York’s high court has been controlled in recent years by an astonishingly cohesive conservative bloc of 4 judges (of 7 total). This conservative majority, led by Chief Judge Janet DiFiore issued a parade of closely divided regressive decisions. Among other rulings, it struck down landmark tenant protections, made it more difficult to hold police accountable for misconduct, and enabled domestic abusers. Most famously, it stripped control of post-2020-census redistricting from an independent redistricting commission and the state legislature and gave it to a single partisan Republican judge. This legally unjustifiable opinion cost the Democrats several seats in the House of Representatives, which, given the narrow margin of the GOP’s victory in the House, may have ultimately accounted for the Democratic loss of that body.
A few months ago, DiFiore abruptly resigned amidst an ethics probe, leaving the ideological composition of the Court of Appeals hanging in the balance. Despite her resignation, DiFiore continued to wield significant power. As Sam Mellins reported in NYSFocus, DiFiore (probably illegally) broke a deadlock to ensure an ideological ally was elevated to be her interim successor. DiFiore’s fingerprints were all over the shortlist of nominations to be her successor.
To provide some context, New York appoints Court of Appeals judges through a Commission on Judicial Nominations (CJN), which evaluates candidates and submits a shortlist of 7 judges to the governor, who then nominates one of them. The CJN is comprised of 12 people, 4 appointed by the governor, 4 by the Chief Judge, and 1 each by the assembly and senate majority and minority leaders. At the time DiFiore resigned, 4 of the CJN members were appointed by her. Another 3 were holdovers appointed by disgraced former governor Andrew Cuomo, a close DiFiore ally. A majority of 8 is necessary to be included on the shortlist, so, DiFiore/Cuomo effectively had veto power on any potential nominee. The shortlist of 7 potential nominees reflected this state of affairs.
In what should have been a scandal, the shortlist omitted three frequent DiFiore opponents who were extraordinarily well qualified and obvious choices. As Sam Mellins again reported, the three sitting Court of Appeals judges who routinely dissented from DiFiore (and her bloc) applied for the Chief Judge position and were snubbed. Each was distinguished and would have been an historic appointment. Rowan Wilson, was so highly respected that he was shortlisted for the Chief Judge position in 2015, the last time the position was open (Cuomo chose DiFiore instead). Wilson was appointed to the Court as an Associate Judge in 2017 and since then has surpassed all (already-high) expectations. He and Jenny Rivera, the longest-tenured judge on the Court of Appeals and former clerk to Sonia Sotomayor, frequently dissented together from the DiFiore bloc’s decisions. Rivera was also snubbed. So too was Shirley Troutman, a moderate who sided with the DiFiore bloc more often than not, but was viewed as Hochul’s most likely choice. The only current Court of Appeals judge who made the shortlist was Anthony Cannataro, who sided with DiFiore in every single case they heard.
The shortlist did have three excellent potential nominees, but by omitting the most plausible progressive and moderate choices, it was apparent that the shortlist was curated with the intent of inducing Hochul to choose a conservative. She obliged, choosing conservative Hector LaSalle, a justice on the Appellate Division, the state’s intermediate appellate court.
LaSalle, a former Long Island prosecutor, has a lengthy judicial record of hostility to the rights of the marginalized. He has issued several anti-union decisions. He frequently joins opinions upholding violations of defendant rights. Perhaps most troublingly though, at a time when abortion rights are under siege federally, he is anti-choice. In 2017, he was part of a panel that rejected protecting access to abortion as a compelling state interest in quashing an investigation into a pregnancy crisis center (for a good primer of “pregnancy crisis centers” check out John Oliver’s segment on them from a few years ago — in short, they use fraudulent, manipulative and misleading tactics to try to dissuade pregnant persons from having abortions).
The pregnancy crisis center litigation merits an in-depth inquiry because it demonstrates a disregard for abortion rights. A number of years ago, NY’s attorney general opened an investigation into a pregnancy crisis center that was allegedly providing medical care without a license, and the AG served it with a subpoena to find out more about its operations and funding. The pregnancy crisis center sought to quash the subpoena on First Amendment grounds. In First Amendment litigation, when a person or organization raises a free speech claim, the government must show that the governmental action (here, demanding certain information through a subpoena) is narrowly tailored to a compelling state interest. As you can probably surmise, the outcome-determinative question in First Amendment litigation is often the precise nature of the governmental interest at issue. The NY AG raised protecting a woman’s freedom to seek lawful medical services in connection with her pregnancy as a governmental interest at stake. LaSalle’s panel at the Appellate Division rejected it. It found that the governmental interest was only in preventing the unlicensed practice of medicine. By cabining the government’s interest to exclude protecting a woman’s right to health care of her choosing, the LaSalle court rendered some aspects of the subpoena no longer narrowly tailored to a compelling governmental interest. In so doing, the LaSalle court protected a pregnancy crisis center (and its donors) from scrutiny for their violations of state law. This decision is notable not only for its rejection of protecting abortion rights as a valid state interest, but because it shows a disregard to the most serious threat to abortion rights in NY. With the legislature overwhelmingly Democratic, to the extent abortion rights are under threat it is from individuals and organizations intimidating or duping people into not exercising their rights. LaSalle’s court essentially held that their conduct was protected by the First Amendment.
Hector LaSalle’s confirmation to the New York Court of Appeals would be a disaster. Absent an unexpected opening, conservatives would hold a majority until at least until 2030, and will hold at least 3 of the 7 seats through 2035. Governor Hochul’s decision to appoint an anti-choice regressive represents a betrayal of those who elected her just a month and a half ago. Indeed, it was progressives and leftists that came to the rescue of her moribund campaign when it looked like she was in danger of losing to a Trump acolyte — Lee Zeldin — in a state as blue as New York.
Fortunately, all is not yet lost. LaSalle is subject to senate confirmation, and it is unclear at the moment whether he has the senate support necessary to be approved. Several Democratic state senators have already indicated their opposition. There are others who have not expressed a commitment one way or another, including senate majority leader Andrea Stewart-Cousins and senate judiciary chair Brad Hoylman. Publicly undecided senators could perhaps be swayed if their constituents make clear their opposition to entrenching a conservative majority on the state’s high court. Please, if you live in New York and care about abortion rights, tenant rights, labor, the rights of the accused, etc., contact your state senator and make plain that LaSalle is an unacceptable choice for the Court of Appeals and must be rejected. Even if you do not live in New York, please spread the word and make sure that your New York friends and family know about this. The confirmation vote is expected to take place in January, so time is of the essence.