These are truly uncharted waters. After a 4 hour and 45 minute hearing of unwithering questioning before the NY Senate Judiciary Committee, where Presiding Justice Hector LaSalle reaffirmed his commitment to reproductive and union rights and ensuring all litigants, including criminal defendants, get a fair shot before the courts, the Judiciary Committee took the unprecedented action of refusing to advance Justice LaSalle’s nomination to be New York’s next Chief Judge to the Senate floor for a full vote. No Court of Appeals nominee, for Chief Judge or an Associate Judge seat, has ever before been rejected by the New York Senate.
It seems that this was the predetermined outcome, but even I naively believed Justice LaSalle might get out of committee. Alas, the political risks that the Governor could build a majority coalition in favor of Justice LaSalle’s nomination in the full Senate were too great for the most progressive Democrats to take that risk. So the Judiciary Committee added four new members, increasing its ranks from 15 to 19 and the Democratic majority from 10-5 to 13-6, to ensure that LaSalle would never make it out of the committee. And that’s exactly what happened: 10 members voted “no”–with the three new Democrat members of the committee providing the exact margin needed–and the 9 others voting to advance the nomination to a floor vote (all six Republicans and three other Democrats). Before any motions could be made to send Justice LaSalle to the floor for a vote notwithstanding the Committee vote, Chair Brad Hoylman-Sigal adjourned the meeting.
Governor Hochul was none too pleased, and argued that Justice LaSalle’s nomination is entitled to a full floor vote in the Senate to comply with the constitutional requirement of “advice and consent.” Here’s her full statement on the Judiciary Committee hearing:
Following the conclusion of the hearing, Senate Majority Leader Andrea Stewart-Cousins disregarded the Governor’s arguments for a full floor vote and sent Governor Hochul the official notice that the Senate had rejected Justice LaSalle’s nomination.
What happens now? There are three distinct possibilities, as I see it: (1) the Governor sues the Senate to compel it to provide the “advice and consent” required by the Constitution, meaning a floor vote on the nomination by the full Senate; (2) the Governor treats the Senate’s refusal to advance Justice LaSalle’s nomination to a floor vote as insufficient for a “rejection” of the nomination, attempts to withdraw the nomination, and chooses someone else off the Commission’s nomination list; or (3) the Senate’s rejection forces the process to start all over again, with a new application process, a new Commission on Judicial Nomination list, a new nomination, and a new confirmation process, all the while the Court of Appeals tries to function with only 6 judges and Judge Cannataro remains the acting Chief Judge for the longest tenure of an acting Chief Judge ever. None of these are good options. Not for the Court, not for litigants, and not for the Court system that will be forced to remain in limbo while this process plays out. Let’s walk through each possibility, quickly.
Option 1: The Governor Sues!
Well, we’re halfway down the road to this possibility already, it seems. Almost immediately after the hearing, reporters announced that the Governor had hired former NY Solicitor General Caitlin Halligan, member of two of the Commission on Judicial Nomination’s recent lists for a Court of Appeals vacancy (to replace retiring Associate Judge Leslie Stein and Associate Judge Paul Feinman, who passed away unexpectedly), to potentially litigate the constitutional claim that Justice LaSalle is entitled to a floor vote of the Senate under the Constitution.
In particular, Article VI, section 2(e) of the New York Constitution provides that “[t]he 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” (emphasis added). The key phrase here is “with the advice and consent of the senate.” The fight would be over what that means.
In plain language, advice is a recommendation on a decision, according to Webster’s. And consent is approval of an action proposed by another, here, the Governor. Those words aren’t the problem, though. It’s the “of the senate” that the Governor and Senate are really fighting over. The Governor believes that “of the senate” means of the full senate, not just the Judiciary Committee, and thus the Constitution requires a floor vote on Justice LaSalle’s nomination. The Senate, on the other hand, thinks that “of the senate” means it gets to apply its own rules for judicial nominations, which require the nominee to first be approved by a majority of the Judiciary Committee to get to a floor vote. That’s not an easy question to answer.
Although many have questioned whether the Governor even has capacity and standing to bring a lawsuit against the Senate, I tend to believe capacity and standing won’t be the problem. First, the Constitution specifically grants the Governor the appointment power, which she will allege is being interfered with by the Senate’s procedural maneuverings to deny Justice LaSalle a floor vote. To me, that’s analogous to the standing that was granted to Shelly Silver when he sued Governor Pataki over the line item veto of certain budget items. As the Court of Appeals explained there,
As a Member of the Assembly, plaintiff is entrusted by the Constitution to exercise legislative power (see, N.Y. Const., art. III, §§ 1, 2). . . . Plaintiff has the broad power and functional responsibility to consider and vote on legislation. That responsibility necessarily includes continuing concern for protecting the integrity of one’s votes and implies the power to challenge in court the effectiveness of a vote that has allegedly been unconstitutionally nullified(Silver v Pataki, 96 NY2d 532, 537 ).
Similarly, the Court of Appeals has assumed, without deciding, standing in a case like this one, where the dispute was between Dean Skelos and Governor David Paterson over the appointment of a new Lieutenant Governor to break a tie in the State Senate, after Paterson became Governor (see Skelos v Paterson, 13 NY3d 141, 148 ).
The bigger question is whether the courts would view this dispute as a matter of pure constitutional and statutory interpretation, which they can adjudicate, or a question of application of the Senate’s internal rules, which would be a political question in which the courts would be reluctant to interfere. I could go either way, on brief review. On one hand, the constitutional command requiring the “advice and consent of the senate” is broad and the courts could say that it’s for the Senate to decide how that is satisfied by following its own rules. Saxton v Carey (44 NY2d 545 ) would support that view, where the Court of Appeals held that it was for the Legislature, and not the courts, to decide whether the constitutional requirement that the budget be itemized had been satisfied such that it could do its duty to approve or vote down the budget.
On the other hand, Matter of King v Cuomo (81 NY2d 247 ) could support the opposite view, that the Senate rules must give way to the plain language of the Constitution:
The internal rules of the Assembly and the Senate, which reflect and even purport to create the recall practice, are entitled to respect. However, those rules cannot immunize or withdraw the subsisting question of constitutional law-making power from judicial review. Since the authority of the Legislature is “wholly derived from and dependent upon the Constitution” (Matter of Sherrill v O’Brien, 188 NY 185, 199), the discrete rules of the two houses do not constitute organic law and may not substitute for or substantially alter the plain and precise terms of that primary source of governing authority.(id. at 251).
The ambiguity of the “of the senate” requirement makes this issue hard to call. It’s either a justiciable constitutional question or a nonjusticiable political question. You make the call, because I certainly can’t.
What I do know is that a lawsuit would be terrible for the court, for litigants, and for the court system as a whole. It would force the Court into legal limbo while the proceedings are ongoing, for an unknown length of time, with only 6 judges to decide the State’s most important cases, and an acting Chief Judge who really can’t implement any new initiatives without knowing when his role as the acting Chief will end. At a minimum, the Court of Appeals will be without a seventh member of the bench for this entire argument term ending in June, and a lawsuit could only prolong that delay. And if the Governor wins, she only gets a floor vote on Justice LaSalle’s nomination, which is no guarantee of confirmation. Not a great scenario under normal circumstances, much less these extraordinary ones.
Option 2: The Governor Rejects the Senate “Rejection” as Insufficient, Withdraws the Nomination, and Picks Someone Else from the Commission’s List
The second option is also pretty uncertain. Judiciary Law section 68 provides exactly what must happen upon a rejection of the nomination by the Senate. But it doesn’t say what happens if the Governor were to say that the Judiciary Committee vote was not a rejection, because it wasn’t a full floor vote of the entire Senate. In that case, I presume the Governor could try to withdraw the nomination of Justice LaSalle and go back to the list to pick someone else to be the next Chief Judge.
That comes at a steep political cost, though, because we would face the same dilemma with a new nominee if the Governor doesn’t abide by the three choices that the progressive Democrats said they would accept: Hon. Edwina Richardson-Mendelson, Abbe Gluck, or Corey Stoughton. As I wrote before, I would rank them in that order, but it’s anyone’s guess if they would be politically palatable to the Governor at this point. And if the Governor did not choose one of those three, what’s to stop the Senate Judiciary Committee from doing the very same thing again?
This at the very least has the possibility to being the shortest route to a new Chief Judge and a full Court of Appeals bench. Once the Governor nominated someone else from the list, the Senate would have a new 30 days to provide its advice and consent. So, we could presumably have a new Chief Judge by the end of February or early March.
Option 3: The Nomination has been Rejected, and the Process Starts All Over Again
Option 3 is that the Governor accepts defeat of LaSalle’s nomination, and the Senate’s rejection means that the process has to start all over again. The rejection is deemed to create a vacancy, the Commission on Judicial Nomination has 120 days to accept applications for the Chief Judge seat, and would presumably look at the same candidate who applied before in addition to anyone new. It then has to interview everyone and create a brand new list for the Governor’s consideration. The same applicants could be on it as the list before, but it could also be totally different, which I’m sure would engender significant criticism from those who have already said the nomination process should be changed.
And the Governor gets to make a new appointment, with the advice and consent of the senate. If she chooses someone the Senate doesn’t like again, we could be stuck in this legal limbo in perpetuity. Not a great option either, but it would be the second shortest, with a confirmation of a new Chief Judge by the end of June or so.
If you were in the Governor’s shoes, which option would you choose? Litigation is definitely not the best option, in my opinion (and I’m a litigator), but options 2 and 3 are accepting political defeat and moving on with a new nomination. Thankfully, that choice is not in my hands.
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