Will Governor Hochul Go to War With Her Own Party to Save Her Judicial Nominee?
"The more the governor doubled down, the more it became an issue about the separation of powers."
7:15 PM EST on January 18, 2023
If Governor Kathy Hochul wants to keep her nominee for the top spot on New York's highest court alive, she might have to sue the legislative body that is controlled by her own party.
Wednesday afternoon's state senate judicial committee hearing concluded in a stunning and resounding repudiation of Hochul's Court of Appeals nominee, Justice Hector LaSalle. The 10-9 vote came after a month-long standoff that has pitted progressive Democrats against more moderate Democrats like Hochul, as well as some Latinos who argue that LaSalle's confirmation would bring desperately needed representation to New York's highest court.
"While this was a thorough hearing, it was not a fair one," the Governor said in a statement that called for the entire state senate, not just the committee, to vote on LaSalle. "While the committee plays a role, we believe the constitution requires action by the whole senate."
Senate Majority Leader Andrea Stewart-Cousins told reporters that LaSalle is done, and that the committee that chooses nominations has to submit a new shortlist for the governor to choose from, while other legal experts disagree, and believe that the whole Senate has to vote now.
Earlier this week, Hochul's office reportedly tapped attorney and former state solicitor general Caitlin Halligan, in anticipation of a fight to get a full Senate vote. It's now up to Hochul to decide whether to pursue litigation against her fellow Democrats. (A spokesperson for the state comptroller said that they would have to review any contract over $50,000 for an outside attorney, and have not received one yet.)
For all of the reasonable objections to LaSalle's record raised by labor unions, law professors, and women's rights groups, it was hard to not see the committee's rejection of LaSalle as a rejection of Governor Hochul's insistence on getting the moderate judge confirmed no matter what, even if she had to invoke the memory of Martin Luther King Jr.
"It started as a disagreement over a nomination," one Albany insider told Hell Gate. "The more the governor doubled down, the more it became an issue about the separation of powers. I think some of the senators voted no because she kept threatening to override the process, and that turned them off."
Another Democratic observer in Albany pointed out that after a near-loss in November, the governor needed to be patching things up, not alienating her Democratic colleagues. Hochul's budget proposal is due in two weeks.
"This was her moment to solidify her standing and begin rebuilding relationships," they said. "Not to declare war."
The hearing began with LaSalle talking about his roots on Long Island. His grandparents emigrated from Puerto Rico, worked at an Entenmann's factory, and joined the union. "I remember walking the picket line with mi abuela," LaSalle recalled. He name-checked Supreme Court Justice Sonia Sotomayor as "a hero and role model for me," and talked about being one of two Latinos in the Suffolk County prosecutor's office. He spoke loudly, with a clear Long Island accent. He seemed nervous. "While I cannot prejudge cases and must base decisions based on the facts, law, and record before me in any given case, I personally strongly believe in a woman's right to make her own reproductive decisions," LaSalle said, while dozens of supporters sitting behind him burst into applause.
"I've never had applause at a senate judiciary committee hearing before," committee chair and Manhattanite Brad Hoylman-Sigal told LaSalle. This would go on to be the most confrontational exchange of the entire hearing, as Hoylman-Sigal cited LaSalle's record of siding with the prosecution 83 percent of the time in appellate cases involving criminal justice issues ("It's not accurate Senator," LaSalle shot back, citing a few cases), his record of ruling against civil rights plaintiffs 75 percent of the time, and a $100 contribution that his campaign had made to the Conservative Party when LaSalle ran as a regular old Supreme Court Justice more than a decade ago.
Also asked: why did LaSalle put conservative former chief judge Janet DiFiore, who resigned under a cloud of ethics violations, as the top reference on his judicial questionnaire? Why did he agree with her decisions 90 percent of the time? Does he see her as a professional mentor? "Not as a professional mentor but as a colleague I worked with," LaSalle responded.
Brooklyn State Senator Zellnor Myrie dove into a case in which LaSalle ruled that a juror could be struck from jury selection because of the color of their skin.
LaSalle said he was merely following precedent, a case he referred to as "Smith."
"So allowing the prosecutor to issue the peremptory challenges based on skin color, you felt it was okay, because that's what the law said?" Myrie asked.
"That's correct," LaSalle responded, before praising the case that would eventually overturn his own decision.
Later, LaSalle was asked why Smith wasn't actually cited in his initial decision, but couldn't say why: "Yeah it should have been cited. Absolutely. It should have been cited in that regard."
Queens Senator Jessica Ramos and Buffalo Senator Sean Ryan both probed LaSalle's decision to allow Cablevision to sue union leaders as private citizens, for actions they took during a virtual town hall hosted by the union.
"What it says in the complaint, that it's a union meeting, that it's union activity," Ramos said.
"Well, it says it was a town hall meeting," LaSalle shrugged.
Ramos also pointed out that LaSalle had received 350 petitions for a reduction of a criminal sentence, but had only granted three. Earlier in the hearing, LaSalle said he had granted "many."
"I think it's more than that. But I'll defer to you," LaSalle said.
In explaining why he made certain controversial decision, LaSalle stressed the "fact pattern" of the cases, and that he is ultimately constrained by precedent.
Queens Senator John Liu pointed out that other jurists, presented with the same information, came to a different conclusion than he did in several cases, including in the Cablevision case.
"You know, it's not just about being constrained by law and prior precedent, it's, you made a decision. You made a judgment call, in that particular case, the Cablevision case, and, you know, it wasn't constrained by anything else. It was your judgment," Liu said.
"We disagreed on the law, senator, that's all it is," LaSalle said. "It's a disagreement." Later, one of LaSalle's biggest boosters, Bronx Senator Luis Sepúlveda, rattled off a long list of cases that he said proved that LaSalle supported unions. "They've disregarded all the other holdings or rules where he's very supportive of the rights of union people," Sepulveda said.
Several times, Democrats in the committee offered LaSalle a chance to review his old decisions and revise them, to admit that he had made a mistake, or would see something differently today than he did back then. But the judge refused. "I stand by every decision I signed on to."
Finally, after two rounds of questioning, it was time to vote on whether to move LaSalle to the next stage, which would be a vote of the full senate on his confirmation. Two Democrats voted in favor, 10 Democrats were against, and 7 others, all six Republicans and one Democrat from the Bronx, Jamaal Bailey, voted to pass LaSalle on to a full senate vote without any recommendation. Hochul's nominee failed to get out of committee, 10-9.
"The nomination is lost. So thank you very much," Hoylman-Sigal said after tallying the votes (he was a "no").
"Mister chair, I just want to know, where is the nomination going? Is it going to the floor? Or is it being held by the committee?" a voice called out.
"Uh, the nomination is lost. And we will um, proceed based on that, uh, information," Hoylman-Sigal responded.
The unnamed state senator attempted to take a vote to move the nomination to the floor, but the chair cut him off. "The meeting is adjourned," Hoylman-Sigal announced, slamming his gavel down. The crowd, packed with LaSalle's supporters, started to boo, and then the audio feed cut out.
Will Governor Hochul wage war on her own party, just weeks before they're all supposed to come together to figure out the budget and plan the legislation they want to pass? Or will she find another candidate?
"I've spoken to a few really smart people who know this stuff," one of the Albany insiders told us. "And I have absolutely no idea what her strategy is."
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