ALBANY — The almost never-ending political battle over the nomination of Appellate Judge Hector D. LaSalle to lead the state’s appeals court will be joined at a key hearing in the state Senate Wednesday morning.
In 1977, Republicans in the Senate majority were at odds with House Democrats over how — or even whether — to deliver constitutional amendments to voters statewide. The change would allow the governor to nominate judges to appeals courts with the advice and advice of the state Senate, rather than having voters elect these jurists — a system long criticized by good government groups for allegedly placing the state’s highest Courts turned into hotbeds of political sanctuary.
Then-Chief Justice Charles D. Breitel called the possibility that constitutional reform might unravel “a bipartisan back alley robbery of court reform.” Senate Minority Leader Manfred Orenstein countered, “If anyone robs court reform, it’s the Chief Justice himself.”
In March 1977, Orenstein told the New York Times: “It is absolutely outrageous to see the Chief Justice play this kind of game.”
The concern for Republicans like Brettle is the high probability that a Democratic justice will lead the court, a scenario that seems more likely to happen if the constitutional amendment is delayed for another year. Democrats hope their favorite judge wins election to replace Brettle, whose term is about to expire, and Brettle wants the governor to appoint the top associate justice.
Instead, it was brought to voters after a political compromise was reached in both chambers — even though polls before Election Day suggested they might reject it.
But it passed, giving Democratic Gov. Hugh L. Carey the chance to nominate Judge Lawrence H. Cook, who has described himself politically as a “liberal centrist.”
During Cook’s Senate confirmation vote in 1979, lawmakers on both sides of the aisle would review the new process for selecting appeals court judges. They will vote unanimously for his nomination, an act that differs from the usual Republican blockade of governorships in the Chamber of Commerce.
There was no Senate discussion of Cook’s decision record — a fact that stands in stark contrast to the heated debate over some of LaSalle’s rulings, which has angered progressives in the Senate and the activist community.
Supporters of Gov. Kathy Hochul and LaSalle in elected offices, as well as the legal community, called on lawmakers to keep an open mind as he heads to the Senate Judiciary Committee on Wednesday morning.
Several senators on the committee, which was recently expanded from 15 to 19 members, said they would not support LaSalle, whom Hochul nominated on Dec. 22.
In the weeks since the governor announced her pick, LaSalle’s judicial background, who presides over one of the nation’s busiest appeals courts in Brooklyn, has come under scrutiny from his supporters and opponents alike. LaSalle, who is Puerto Rican, would become New York’s first Latino chief justice if confirmed by the Senate.
Many opponents of LaSalle have called on Hochul to withdraw the nomination, with some Senate Democrats claiming they don’t have enough votes in their conference to confirm him. But that doesn’t mean LaSalle can’t be nominated if he wins Republican votes, which outnumber Republicans by a two-to-one margin in the 63-member Senate.
Three Democratic members of the Judiciary Committee have spoken out against LaSalle, and two have spoken in support of him. Democrats have 13 seats on the committee, while Republicans have six.
Hochul and state Senate Majority Leader Andrea Stewart-Cousins have spoken out over the past week about whether LaSalle’s nomination needs to clear the Judiciary Committee before going to the Senate for a vote.
“Unless it leaves the committee, it’s not going to the floor,” Stewart-Cousins said last week. “What happens in committee matters, it’s the norm.”
Hochul argued, however, that under the state constitution, the Senate “must recommend and agree to the governor’s appointment.”
“I’m willing to do whatever I need to get it through committee,” Hochul said last week. “This man had the opportunity to be so horribly defamed in a handful of carefully selected cases.”
LaSalle supporters are asking their fellow Democrats to put politics aside and move on to discussing his merits. Some court watchers, however, say keeping politics out of judicial choice is an illusion — as it was in the 1970s and in the 2020s.
“Anyone suggesting that the appointment system will eliminate politics — that’s simply absurd,” said Vincent M. Bonventre, a professor at Albany Law School and an expert on the appeals court.
Bonventre disagreed with Stewart-Cousins’ position that the LaSalle nomination could die in committee.
He pointed to wording in the constitution in the same 1977 amendment that states that nominations for governor are subject to the advice and consent of the “Senate.” He took it as a sign that it had to go into the body.
“Let’s put our cards on the table: The Senate would be remiss not to vote on this,” Bonventre said.
One Senate Democrat who will play a big role in LaSalle’s future agrees with Bonventre on at least one point: “It’s naive to think that politics is out of touch with any individual’s confirmation process,” Judiciary Committee Chairman Brad Holman said Tuesday. .
Brendan J. Lyons contributed to the report.
