Allies of Hector LaSalle, Gov. Kathy Hochul’s pick for New York’s chief judge of the state Court of Appeals, are convinced the Democratic civil war over his nomination will end up in court.
What’s less clear, however, is who will file suit.
Hochul, a Democrat, said Thursday her office is “considering all our options” after the Senate Judiciary Committee led by members of her own party rejected LaSalle’s nomination by a single vote the day before.
Those options would include a potential lawsuit against the Senate, whose Democratic leaders argue the nomination was killed the moment the committee voted him down after a five-hour hearing on Wednesday. Hochul and LaSalle’s supporters claim otherwise, saying the state constitution requires a vote of the full Senate.
“I thought he did an extraordinary job,” Hochul said on Wednesday, referring to LaSalle’s performance in the hearing. “And we're certainly looking at all of our options.”
But Hochul may not have to bring a suit herself. It’s possible LaSalle could sue, or perhaps even Senate Republicans who tried, in vain, to make a motion for a full Senate vote as the committee abruptly adjourned its meeting on Wednesday.
State Sen. Anthony Palumbo, a Suffolk County Republican and the ranking member of the judiciary committee, didn’t rule anything out on Thursday. The Senate GOP agrees with Hochul's opinion that a full vote is warranted.
“It's something I think we would explore,” Palumbo said of a possible lawsuit. “Look, this is the governor's pick … It has nothing to do really with the individual person. It has to do with the process.”
Ten senators — all Democrats — of the 19-member judiciary committee voted against LaSalle’s nomination on Wednesday, preventing it from going to the floor for a vote. The committee’s six Republicans, meanwhile, were among those who voted to allow the nomination to proceed without a formal recommendation.
LaSalle, the presiding justice of the state Appellate Division’s Second Department, faced opposition from labor unions and many Senate Democrats for some of his prior judicial decisions, which left them concerned that LaSalle would push the state’s top court to the right. His record includes a 2015 decision that allowed Cablevision to proceed with a defamation lawsuit against two union leaders by claiming they were acting in their personal capacity, which led to LaSalle’s critics branding him as anti-union. Had he been confirmed, LaSalle’s term would have lasted for 14 years.
Democrats control a 2-to-1 majority in the 63-seat Senate, and Wednesday’s vote made clear that there is broad opposition to LaSalle’s nomination — with even moderates like state Sen. Neil Breslin of Albany and Shelley Mayer of Yonkers voting against him.
It all left some of Hochul’s fellow Democrats questioning why the governor or LaSalle’s supporters would pursue a lawsuit at all, considering the full Senate would appear poised to reject him anyway.
“Suing the state Senate over your perceived constitutional right to be publicly humiliated all over again seems silly to me,” Sen. Julia Salazar (D-Brooklyn) tweeted on Wednesday.
Susan Lerner, executive director of good government organization Common Cause New York, said Hochul bringing a lawsuit against the Senate would raise serious concerns over the separation of powers. It’s within the Senate’s prerogative to determine how the chamber operates, she said.
“I just see this as a very intemperate move separate from the question of its legality,” Lerner said. “I think it blows up the relationship between the Legislature and the governor in a way that is not productive.”
LaSalle’s allies see it differently.
Roberto Ramirez is a former state assemblymember from the Bronx who co-founded the MirRam Group, an influential lobbying and political consulting firm. He was among several Puerto Rican leaders to organize support for LaSalle — who would have been the first Latino to serve as chief judge of the Court of Appeals — under the banner of “Latinos for LaSalle.”
Ramirez said he believes there will be a lawsuit that could make its way to the state’s high court and give LaSalle’s supporters another opportunity to get him over the finish line.
“I believe there's going to be a [full Senate] vote, and the next time we are going to be more prepared,” he said.
LaSalle’s supporters and opponents have accused each other of having ulterior motives. Republicans have accused Senate Democrats of trying to politicize the judicial nomination process by pushing Hochul to select a more liberal nominee, while progressives have questioned MirRam’s role in the pro-LaSalle push given the firm’s lengthy client list that, for nearly a decade, included Cablevision.
Making a case
Hochul’s office has consulted with or heard from a number of attorneys in recent weeks that have advised her she could have a case.
The Buffalo News reported Wednesday that Hochul’s office was in the process of retaining Caitlin Halligan, the former state solicitor general, ahead of possible litigation.
On Tuesday, James McGuire, a private attorney who served as chief counsel to Republican former Gov. George Pataki, sent a seven-page legal analysis to Hochul and Senate leaders making the case that the full Senate must vote, according to a copy obtained by Gothamist.
“There is no room for genuine doubt that the constitution requires the Senate to pass on every appointee to the Court of Appeals,” McGuire wrote.
Any potential lawsuit against the Senate would come at a critical time in the legislative calendar.
Hochul is required to unveil her state budget proposal by Feb. 1, which kicks off a period of intense negotiation between the governor and legislative leaders prior to the March 31 deadline to pass a spending plan. A nasty, drawn-out court battle could threaten to further harm the relationship between Hochul and Senate leaders.
Senate Majority Leader Andrea Stewart-Cousins, a Yonkers Democrat, said she doesn’t know if Hochul will ultimately sue.
“I hope not,” Stewart-Cousins told reporters on Wednesday. “As I said, I think that it's clear that this nominee was rejected, and that’s it. I mean, we need to find a nominee that will be supported by the majority of the Senate and get on with that.”
Correction: A previous version of this story misstated the political breakdown of the court.