On December 22, after months of speculation and politicking over who would be nominated as the next chief judge of the New York State Court of Appeals, Governor Kathy Hochul chose Judge Hector LaSalle to head the state’s high court. LaSalle, a Long Island native and former Suffolk County prosecutor, currently serves as the presiding justice of the intermediate appellate court’s hectic Second Division, which covers most of downstate, except Manhattan and the Bronx. Several progressive lawmakers and groups quickly expressed opposition to the selection, setting the stage for a confirmation battle in the state senate, one that might see Hochul make common cause with Republicans to push back against her party’s left flank.
In July, then-Chief Judge Janet DiFiore unexpectedly announced that she would resign at the end of August, kicking off the lengthy replacement process mandated under New York law. Shortly before Thanksgiving, the Commission on Judicial Nomination, the body responsible for submitting qualified candidates to the governor, sent Hochul a list of seven names from which she had to make her choice.
In addition to LaSalle, the list included Court of Appeals Judge Anthony Cannataro, a DiFiore ally; Abbe Gluck, a professor at Yale Law School and the Yale School of Medicine; Corey Stoughton, a leading litigator at the Legal Aid Society; and Judge Edwina Richardson-Mendelson, the former head administrative judge of New York City’s family court system. Conspicuously absent were the high court’s three more liberal sitting judges, though all had applied for the job.
Meantime, progressive activist groups and legislators lost no time in dissuading Hochul from selecting a candidate they deemed too conservative or antagonistic to criminal defendants. In August, a coalition of more than 100 organizations, including the Working Families Party, unions, and public defender groups, wrote a letter to Hochul listing the qualities they wished to see reflected in her pick. Foremost was their demand that the chief judge not have a prosecutorial background; naming such a candidate would extend the court’s majority of former prosecutors and demonstrate insufficient commitment to “using the law to protect the most vulnerable.”
The coalition deemed LaSalle unacceptable, despite his garnering top marks from state trial lawyers and bar associations. A group of 46 law professors also wrote to Hochul specifically urging her not to pick LaSalle, whom they characterized as an “activist conservative.” In response, a group of five state bar associations vouched for LaSalle’s extensive qualifications, praised his character, and hailed the prospect of New York’s first Latino chief judge.
For months, Hochul said that her decision would not include litmus tests, and in a November op-ed, she promised to select the “most qualified and capable person for this role.” LaSalle’s 14 years on the bench and administrative experience no doubt weighed heavily in his favor, equipping him well for the job of supervising the extensive statewide court system, with its $3 billion budget, 3,000 judges, and 15,000 employees.
What in LaSalle’s judicial record is causing so much consternation among progressives? Start with a high-profile 2014 opinion, in which a criminal defendant, who, when pleading guilty, told the court that he understood the implications of signing a waiver of appeal, including “any issue that may arise from this case except certain constitutional issues.” LaSalle joined the majority in ruling that he had voluntarily and knowingly waived his right to challenge the police’s search of his car as unconstitutional.
In another case, LaSalle joined a unanimous decision holding that then-state attorney general Eric Schneiderman infringed on the First Amendment rights of a crisis pregnancy center and its employees by ordering sweeping subpoenas, supposedly to determine whether the centers engaged in an unlicensed practice of medicine. Instead of welcoming LaSalle’s protection of the constitutional rights of unpopular groups, the professors decried his apparent “insensitivity to the importance of reproductive rights.”
Hochul’s crossing the Left’s red line by selecting a former prosecutor suggests willingness to push back against progressives on some criminal-justice issues, an important sign ahead of the next legislative session. The strong progressive contingent in Albany might gear up for a fight against LaSalle to signal that it won’t back down in the wider campaign to preserve measures like bail and discovery reform. At least 12 state senators have already pledged not to support LaSalle—meaning that Republican votes will be needed to secure his seat. This presents Hochul with a choice: reach across the aisle and check progressives on issues that featured prominently in November’s election, or acquiesce and lose face.
No nominee for the Court of Appeals has ever been rejected by the state senate. LaSalle’s confirmation is thus shaping up to be the most consequential—and possibly the ugliest—in New York’s history.
Photo: UpstateNYer via Wikimedia Commons / CC BY-SA 3.0