Shared from the 2/10/2023 Albany Times Union eEdition

Senate GOP sues to force vote on LaSalle

Nominee for chief judge was narrowly rejected last month by committee



Will Waldron / Times Union

Sen. Anthony Palumbo makes a motion to Sen. Brad Hoylman-Sigal to advance a Senate floor vote for Justice Hector D. LaSalle on Jan. 18. Palumbo on Thursday filed suit to force a vote for the chief judge nominee.

ALBANY — A leading state Senate Republican has sued the Democratic-controlled chamber in an attempt to force a floor vote on Gov. Kathy Hochul’s embattled nominee as chief judge of the Court of Appeals.

The lawsuit pitting the Senate’s conferences against each other offered the latest turn in the historic rejection of a governor’s selection for New York’s highest court. And it comes after the fate of Justice Hector D. LaSalle had begun to recede from the conversation in Albany, as Democratic lawmakers and the governor had begun to turn their attention to negotiations on Hochul’s $227 billion proposed budget.

LaSalle’s nomination ran afoul of progressive and labor-aligned Democrats in the conference who took issue with a handful of his past decisions on issues such as unions and abortion rights. The suit presents Republicans with an opportunity to align themselves with moderates in an attempt to push through a nominee in a chamber where Democrats hold a supermajority.

Sen. Anthony H. Palumbo, the ranking member of the chamber’s Judiciary Committee, filed the suit on Thursday in state Supreme Court in Suffolk County. It names as defendants the Senate as a body as well as Majority Leader Andrea Stewart-Cousins and the Democratic members of the committee, which voted narrowly against sending LaSalle’s nomination to the floor.

“A vote of a mere committee of the Senate ... does not satisfy the constitutional requirement of advice and consent,” Palumbo’s 19-page complaint states. “The Constitution does not delegate that authority to a committee.”

The court agreed to take the case in expedited fashion; the first hearing could beheld as early as Feb. 17.

The complaint lands three weeks after the Judiciary Committee hearing in which LaSalle, a state appellate justice, was narrowly rejected in a 10-9 vote. Palumbo and several other Republicans on the losing side voted to move the nomination to a floor vote “without recommendation.”

The week prior, Stewart-Cousins said the nomination “doesn’t get to the floor unless it gets out of committee” according to the Senate’s parliamentary rules.

Her spokesman Mike Murphy said on Thursday that the chamber had yet to be served with the lawsuit. “It is embarrassing but not surprising that the Senate Republicans have no basic understanding of law or the constitution,” he said.

Palumbo and some constitutional law experts have asserted the Senate’s rules appear to be in conflict with the constitutional amendment that requires the “advice and consent of the Senate” — not just a committee — on a governor’s nomination to the Court of Appeals, a process that was approved by voters in 1977. No previous nominee has been rejected by the Senate.

In the lawsuit, Palumbo cites a number of areas — the constitution as well as judiciary law and legal precedent — that he believes show a full Senate vote is required. Legal scholars point to the fact that a nominee to the Court of Appeals, unlike a bill that can die in committee, has a constitutional right to advice and consent of the Senate.

“Let’s put the cards on the table: It would be a dereliction of duty for the Senate not to take a vote on this,” Vincent M. Bonventre, an Albany Law School professor and expert on the Court of Appeals, told the Times Union ahead of the committee vote last month.

The issue has been bubbling since December, when Hochul announced her nomination of LaSalle from the short list of seven nominees selected by a nonpartisan commission that’s tasked with selecting nominees to the Court of Appeals. Within 48 hours of the announcement, a number of Senate Democrats publicly declared their opposition to LaSalle.

Reflecting on one case that drew progressive ire, the justice said he had been “constrained” by the law to rule against the recognition of skin color as a protected class when selecting a jury pool, but that he applauded the Court of Appeals’ subsequent reversal of the decision.

Others were concerned that LaSalle, a former prosecutor, would not substantively change the direction of a court currently split between relatively conservative and relatively progressive members. Chief Judge Janet DiFiore, a former prosecutor and onetime Republican who stepped down in August, was viewed as the leader of the conservative bloc.

LaSalle’s supporters were especially aggrieved by the rejection of a jurist who would become the first Latino chief judge in state history.

Palumbo’s suit argues that he and his colleagues are being denied their constitutional opportunity to a floor vote by the Democrats’ insistence on allowing a committee to hold sway over the entire chamber.

Allowing that to stand “would insulate individual senators from any public scrutiny that a full floor vote provides, reducing the process to a small number of senators controlling the outcome,” the complaint states. “This is the polar opposite of what the Constitution requires.”

The Executive Chamber declined to comment on the suit. For weeks, speculation at the Capitol has focused on whether Hochul would be the one to bring legal action in an attempt to force a floor vote — or announce a new nominee. She has never stated her intention beyond holding out the possibility of a lawsuit.

The complaint’s constitutional argument could conceivably be decided by the six current members of the court that LaSalle is seeking to join — a panel that includes one associate justice who was also on the short list of possible nominees, and two others who reportedly applied for consideration but were rejected by the state Commission on Judicial Nomination.

State courts have generally shown reluctance to involve themselves in the inner workings of a coequal branch of state government.

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