On Wednesday, following a hearing lasting nearly five hours, the state Senate Judiciary Committee voted 10-9 to reject Hector LaSalle’s nomination to be chief judge of the Court of Appeals, the state’s highest court. As far as Senate leadership is concerned, that’s the end of the matter.
“I think it’s clear that this nominee was rejected, and that’s it,” Senate Majority Leader Andrea Stewart-Cousins told reporters immediately following the vote.
But Gov. Kathy Hochul is unwilling to give up the fight for her nominee. In a statement, she criticized the Judiciary Committee vote and insisted that the nomination be brought to the floor of the state Senate.
“While this was a thorough hearing, it was not a fair one, because the outcome was predetermined,” she said in a statement shortly after the vote. “Several Senators stated how they were going to vote before the hearing even began – including those who were recently given seats on the newly expanded Judiciary Committee. While the Committee plays a role, we believe the Constitution requires action by the full Senate.”
On Friday, Stewart-Cousins fired back at the governor in a statement of her own: "This ongoing attack makes it clear that there are those that don't accept the Senate's role in this process, and will not be happy unless we simply act as a rubber stamp. This is a dangerous infringement of the separation of powers.”
The governor is reportedly in the process of retaining Caitlin Halligan as outside counsel in preparation for a potential lawsuit against the Senate. Halligan is top-flight litigator and former state solicitor general now in private practice who has repeatedly been in contention for a spot on the Court of Appeals herself.
State Senate Judiciary Committee Chair Brad Hoylman-Sigal told City & State that the idea of the governor suing the state Senate was ludicrous.
“How does the Court of Appeals even decide the case, when several of them applied for the job? How does the Court of Appeals even seek enforcement? What, we’re going to have state troopers with bayonets forcing us into the chamber? I mean, the whole thing on the surface seems absurd!”
Despite the apparent absurdity, some legal experts believe that Hochul could actually have a case.
Jonathan Lippman served as the chief judge of the Court of Appeals between 2009 and 2015 and is now in private practice at Latham & Watkins LLP. He has been an outspoken supporter of LaSalle’s nomination and sees the state Senate’s refusal to give LaSalle a floor vote as outrageous and likely unconstitutional.
“There is absolutely no doubt that a floor vote is required,” Lippman told City & State. “This was just a committee vote, just one step in this process. They’re going to have to bring it to a floor vote. So this is just the first step and it's going to go to the floor as the Senate has to meet its constitutional responsibilities.”
Not everyone agrees with the former judge’s reading of the law. Noah Rosenblum, a law professor at NYU and an outspoken opponent of LaSalle’s nomination, said that there is nothing in the state constitution that requires the state Senate to hold a floor vote on LaSalle.
“I respect Judge Lippman immensely, but I've yet to encounter a textual or structural argument for why a gubernatorial nominee is entitled under the constitution or has a right under the constitution to a Senate vote,” he said. “Meanwhile, there's some pretty strong justiciability, standing, and separation of powers considerations that would prevent any court from intervening on that.”
Before 1977, vacancies on the Court of Appeals were filled through elections. That year, an amendment to the state constitution created the Commission on Judicial Nomination, a body that reviews applicants for positions on the high court and then produces a shortlist of seven potential nominees.
The rest of the process is spelled out in Article VI, Section 2(e) of the New York State Constitution: “The 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.”
The Senate’s specific role in the nomination process is detailed in Section 68(4)(e) of the Judiciary Law: “The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor. A vacancy shall be deemed to occur upon the rejection by the senate of such an appointment.”
The key question is whether a rejection by the Senate Judiciary Committee counts as “rejection by the senate.”
The state Senate leadership believes that it does, but Lippman says it does not.
“In my view, and I think this is absolutely the strong legal position by any standard, it's not enough for the committee to vote the nomination down within 30 days,” he said. “That doesn't do the job.”
In the past, Lippman added, the state Senate has acknowledged that the Judiciary Committee vote is merely advisory and the Court of Appeals nominations must be brought to the floor.
“Until today, the Senate's judiciary chair always said that this is the one case that always has to go to a floor vote,” he said. “This is different than everything else that the committee considers.”
That was news to Hoylman-Sigal, who said that as far as he knows, Court of Appeals nominations have always needed the go-ahead from the Judiciary Committee before going to the floor.
“Nominations don't make it to the floor unless they're passed by the committee or there's the requisite number of (votes to advance) without recommendations,” he said. “This has been our standard practice, at least for the decade that I have been in the Senate.”
What is “the Senate”?
Much of the controversy centers on the definition of the word “Senate,” specifically whether the word refers to “the higher chamber of the state Legislature” or “the 63 members who make up the state Senate.”
“I think the constitution is pretty clear about who gets to decide on the rules that the Senate has to follow, and the answer is the Senate,” Rosenblum said. “In the parts (of the constitution) that set up the Legislature, it gives each house the power to set its own rules.”
Specifically, Article III, Section 9 of the constitution states: “A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.”
At a press conference on Wednesday, Stewart-Cousins explained the state Senate’s internal rules.
“The Senate has rules about how things get to the floor,” she said. “Our rules dictate that we go through committees, and if the committee advances something, then it goes to the floor. If the committee does not advance something, then it does not go to the floor.”
Lippman rejects this argument. He believes that the state constitution requires the nominee be voted on by the Senate, not just the Judiciary Committee, and it does not matter what the Senate’s own internal rules say.
“It's been one of the arguments that they've been saying, well, whatever it said, the Senate rules trump this,” he said. “But the Senate rules can't trump the state constitution, and there are cases right on point from the court of appeals that say that.”
Even if Lippman is correct that the state constitution requires the full Senate to vote on LaSalle’s nomination, that does not necessarily mean that a court will force the Senate to grant him a floor vote.
Lippman said that the governor could bring an Article 78 proceeding, which allows individuals to petition a court to review a government agency or public body’s actions and then issue relief, such as a mandamus order (a command to fulfill a government duty) directing the Senate to hold a floor vote.
“You could do an Article 78, you could do a mandamus within that,” he said. “That would be up to the party bringing the proceeding and the lawyer representing them. But yes, there would be a proceeding to enforce the constitutional provision.”
Rosenblum said any lawsuit would have to overcome a number of hurdles, including questions related to standing (Can the governor show that she’s been harmed?), justiciability (Is this even a matter for the courts?), separation of powers (Can the judicial branch tell the Legislature what to do?), and enforcement.
In order to show standing, the governor would have to show that her nominee was entitled to a floor vote and she was harmed when the state Senate refused to allow one.
Lippman believes the governor clearly has standing, since he believes the state constitution requires the state Senate to hold a floor vote on her nominee.
“The governor makes the nomination, and the Senate votes on it,” he said. “So I think there are lots of people who could bring this lawsuit. I won’t tell the governor what to do or what not to do, but what I will tell the Senate is that they have that constitutional responsibility.”
Rosenblum disagrees. He said that the constitution merely describes a process by which a nominee is confirmed, but “the description of a process is not the same thing as either an affirmative obligation on the Senate to give a floor vote or an individual entitlement to any gubernatorial nominee to such a floor vote.”
Even if a court found that the governor did have standing, though, it could still dismiss the case on the grounds that the issue is not “justiciable,” which means that it is not a matter for the courts to resolve. As Rosenblum explained, many rights granted in state constitutions are not considered justiciable, including many ordinary political procedures.
Rob Rosborough, an appellate attorney who writes frequently about issues related to the Court of Appeals, says that it is simply not clear whether the courts would consider the issue of LaSalle’s nomination to be justiciable.
“The ambiguity of the ‘of the senate’ requirement makes this issue hard to call,” he wrote in a recent blog post. “It’s either a justiciable constitutional question or a nonjusticiable political question. You make the call, because I certainly can’t.”
Beyond standing and justiciability, there are questions about whether a court could enforce an order against the Senate and whether that would violate the constitution’s separation of powers.
“Would the court try to order the Senate to bring up the nomination?” Rosenblum asked. “What if the Senate refused? Would the court start fining senators individually?”
“It’s a separation of powers issue from the beginning,” he added. “That’s why a court wouldn’t consider it.”
In a press briefing on Friday, Lippman said that he is confident that the Senate would not refuse to follow a lawful court order, avoiding any potential constitutional crisis.
“I have absolutely no doubt that the Senate would comply with any order that came from the high court,” he said. “If it goes to a court case, all parties will comply with whatever the court’s ruling is, in my view.”
The strongest reason for the governor not to sue the Senate may be because even if she were to win a lawsuit, and the Senate agreed to hold a floor vote on LaSalle’s nomination, her nominee would probably still be rejected.
So far, 25 state senators have said publicly that they will not vote to confirm LaSalle, while just three have said publicly that they will. For LaSalle to be confirmed in a floor vote, Hochul would need to convince at least 29 of the remaining 35 senators (21 Republicans and 14 Democrats) to support LaSalle. That’s a tall order, and filing a lawsuit against the state Senate seems unlikely to garner her much support among senators.
Ongoing litigation between the executive chamber and the state Senate would also, at the very least, complicate this year’s budget negotiations and could make it much harder for the governor to advance other aspects of her legislative agenda.
“It’s a colossal waste of time and taxpayer dollars to have one branch of government suing another when the work of the people needs to get done,” Hoylman-Sigal said. “I want to build support for her agenda in the state Senate, which will be made more difficult if she is suing us at the same time.”