Last week, I wrote about New York Governor Kathy Hochul’s shocking betrayal of her constituents in nominating a conservative ex-prosecutor — Hector LaSalle — to be the chief judge of the state’s highest court, the Court of Appeals. LaSalle, now the presiding judge of one of the state’s intermediate appellate courts, has a history of joining rulings hostile to labor, abortion rights, and criminal defendants. If confirmed by the state senate, LaSalle would entrench a conservative majority at the Court of Appeals through 2030.
Since I last wrote about this profoundly disappointing nomination, there have been significant some developments, and I now write to provide an update.
Within hours of Hochul’s announcement, several Democratic state senators announced their opposition to LaSalle’s appointment. Over the next few days several more senators joined the growing chorus. So too several prominent unions in the state, including some that could hardly be described as having progressive politics.
Despite the outcry, Hochul stood by her choice, accusing LaSalle’s opponents of “cherry-picking” a couple of cases. This was profoundly unpersuasive. After all, the anti-labor pro-crisis-pregnancy-center and pro-prosecution decisions cited by LaSalle’s opponents were decisions he joined, and Hochul failed to provide any evidence that these regressive decisions were somehow anomalous or inconsistent with his overall judicial philosophy. Hochul also suggested that senators might be convinced to support him after his hearing, but this again reflects a lack of seriousness. As anybody who has paid attention to Supreme Court confirmation hearings recently can attest, a judge’s prior judicial record is far more predictive of their likely jurisprudence than nonbinding and meaningless pablum provided in a senate hearing.
Today, Deputy Majority Leader Mike Gianaris became the 11th Democratic senator to announce that he will vote no on LaSalle’s nomination (a 12th Democratic senator joined the opposition shortly thereafter). This was an important milestone. Because Democrats hold a 42-21 majority in the NY Senate, 11 Democratic no votes means that the nomination cannot succeed without GOP support. And in recent years, Democratic leadership in the senate has been reticent to allow floor votes on measures that do not have enough Democratic support to pass without relying on GOP votes. Indeed, the chair of the Senate Judiciary Committee (who is publicly undecided on the nomination, but his public statements reveal he is extremely skeptical of LaSalle) announced today that he opposed a floor vote if GOP votes were required to confirm LaSalle. Given this, Governor Hochul’s efforts to install a right-wing majority on New York’s highest court now appear dead in the state senate, particularly given reporting that there are up to 10 additional Democratic senators who are against LaSalle’s nomination, but have not made their position public.
Despite this state of affairs, Hochul insisted today that senate Democrats move forward with LaSalle’s confirmation. In doing so, she implied that she expects to receive, and perhaps will lobby for GOP support in moving forward the nomination. Concerningly, LaSalle is perceived as so conservative that it is conceivable that the GOP could decide that the prospect of a conservative-dominated state high court is enticing enough to forego inflicting onto Hochul the humiliation of being the first governor to ever have a high court nominee rejected by the senate. Of course, that this is a realistic possibility should be a further giant red flag to any as-yet-undecided Democratic senators.
So where does that leave us? Until and unless Hochul withdraws LaSalle’s nomination, the state senate is required to confirm or reject his nomination within 30 days, which means the senate must act by mid-to-late January. Until then, it is vitally important that constituents make clear to their elected officials that LaSalle is an unacceptable choice for Chief Judge. Every state senator who announces their opposition to entrenching a conservative Court of Appeals majority through 2030 puts more pressure on Hochul to withdraw this catastrophic nomination. So, if you live in New York, please contact your state senator and ask that they announce their opposition to LaSalle and demand that Hochul withdraw the nomination (and if they have already announced their opposition, thank them). And make sure your New York friends, colleagues, and family are aware of this issue.