Gov. Kathy Hochul says the full state Senate must vote on the nomination of Hector LaSalle as New York’s top judge – regardless of what its Judiciary Committee decides – but she may need to take her fellow Democrats to court to get it done.
“The Constitution of the state of New York is clear: the New York State Senate has to advise and consent the governor on her appointment,” Hochul told reporters in Albany after an unrelated Thursday event.
Her position that the committee cannot legally block LaSalle puts her at odds with state Senate Majority Leader Andrea Stewart-Cousins, Judiciary Chair Brad Hoylman (D-Manhattan) and a growing list of Democratic state senators, who believe that if the committee rejects LaSalle his nomination is dead.
“What happens in committees matter,” Stewart-Cousins told reporters earlier this week..
Getting the nomination to the floor would allow Hochul to assemble a coalition between Republicans in their 21-member minority conference and enough Democratic colleagues among their 42-seat supermajority to get the 32 votes LaSalle needs to get confirmed by the chamber.
A majority of committee members are expected to vote against confirming him at a hearing scheduled for Wednesday, which could set the stage for the looming showdown between Hochul and progressive senators who say past rulings show LaSalle is too conservative.
Hochul, her counsel and legal experts say the committee does not have to recommend LaSalle while arguing the Constitution and state law limit recently-expanded 19-member panel must move the nomination to the floor.
“The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals,” reads the state Constitution.
Some experts say the use of the word “Senate” can only mean the body in its entirety.
“It has to go to a full vote – the committee can hold a hearing and give a report, but they don’t seem to have the authority to unilaterally reject a candidate,” attorney Leslie Silva, a partner at Tully Rinckey, told The Post Thursday.
“The New York State Constitution says: ‘If the Senate rejects an appointment’ – which indicates the full senate must consider the report and vote, not just the Committee.”
The Constitution also states the “Senate shall” vote on approving interim appointments to the be chief judge, further suggesting that the full body has to take an up or down vote on all Court or Appeals picks.
Former Chief Judge Jonathan Lippman claimed the “language is crystal clear” the committee has “no discretion” to do anything other than voting to recommend or not recommend LaSalle before his nomination goes to a vote by the full chamber.
He noted that left-leaning Court of Appeals Justice Jenny Rivera got confirmed in 2013 even though the committee chose not to recommend her.
“When Republicans or Democrats have controlled the State Senate, it always goes to the floor, because that’s the constitutional design. I see no, in my view, no discretion there. There is a constitutional responsibility,” Lippman said.
LaSalle supporters say his record merely reflects a commitment to the letter of the law.
The newly-elected governor sidestepped a question Thursday about whether she might sue the state Senate in the event LaSalle, who currently serves as the head of a busy Brooklyn-based appellate division, does not get a floor vote.
“I’m willing to do everything we can to get it through the committee. There’s an opportunity for this individual who has been so horribly maligned, based on the handful of cherry-picked cases out of 5,000,” she said.
The Judiciary Committee has never blocked a chief judge nomination from reaching the floor of the state Senate, which has never rejected a gubernatorial pick.
“Legal victory is hardly assured if she chose to go that route while making good on her past vow to do whatever it takes to make LaSalle the first Latino chief judge in state history,” according to Albany Law School Professor Vincent Bonventre, who has written widely on the Court of Appeals and state constitutional law.
“It doesn’t seem to be clear that the Senate absolutely must take a vote. That’s not clear. It can be read that way. But on the other hand, it could be,” he added.
A Stewart-Cousins spokesman did not immediately provide comment Thursday following Hochul’s recent claims about a required floor vote on LaSalle.
Hoylman told The Post “there is no notation in the Constitution that a full vote on the floor is required,” he said while noting that the document also states “each house shall determine the rules of its own proceedings.”
He added that while he “respected the governor’s prerogatives” in selecting a chief judge, the Senate has the “final” say in how it handles its own business.
“The notion that we are kicking off this legislative session with a constitutional crisis seems farcical to me,” he said.
But Silva said being part of a co-equal branch of state government does not protect the state Senate from having to hold a floor vote on LaSalle if the Court of Appeals were to ultimately decide in favor of Hochul’s Executive Branch on any litigation that might come out of her growing fight with her fellow Albany Democrats, unions and lefty activists.
“The Committees have the authority to reject bills or ‘other matters,’ but that does not trump the authority of the governor within the Constitution. That would seemingly supersede the Senate’s rules, but I suppose it’s all up for interpretation if the matter is litigated,” Silva said.