Bloomberg Law
March 28, 2023, 7:25 PMUpdated: March 28, 2023, 8:15 PM

After Judge Fracas, Hochul and Senate Unite on Vacancy Reforms (1)

Keshia Clukey
Keshia Clukey

After rebuking Gov. Kathy Hochul’s pick for the state’s top court, Senate Democrats are backing legislation that would make it easier for the governor to fill vacancies on the Court of Appeals.

If the governor selects a sitting associate judge to head the state’s Court of Appeals, she could then fill their position with a nominee from the list of recommendations provided to her by the state nominating commission, according to the proposed measure (S.6061/A.5983).

The bill, which Hochul proposed Monday and Senate Democrats backed Tuesday, comes after legislators rejected the governor’s pick to head the Court of Appeals, citing his conservative voting record.

State Senate Judiciary Committee Chairman Brad Hoylman-Sigal (D) sponsored the legislation, and it’s expected to be voted on later this week. Assembly Judiciary Committee Chairman Charles Lavine (D) sponsored the same bill Tuesday afternoon in his chamber. Democrats hold a supermajority in both the Senate and Assembly.

The Court of Appeals, the state’s top court, at full strength has a chief judge and six associate judges, each serving 14-year terms.

With the current vacancy, the highest court for the fourth most populous state in the union could be deadlocked with three more left-leaning judges and three conservative-leaning judges left to rule on cases that could potentially involve redistricting, gun laws, reproductive rights, and criminal law protections.

Under the bill, if the governor appoints a sitting associate judge to the chief judge position, their vacancy could be filled by a nominee from the list of recommendations provided to her by the state nominating commission—which avoids a lengthy search process.

The state Commission on Judicial Nomination sent a new list of seven candidates to Hochul (D) last week. It includes three judges who already sit on the Court of Appeals. She has until April 23 to pick a candidate to send to the Senate for confirmation.

The proposal shows some cooperation between Hochul and Senate Democrats, who in an unprecedented move on Feb. 15 rejected Hochul’s chief judge nominee, Hector D. LaSalle, in a 20-39 vote, citing his conservative record including cases on organized labor and abortion.

The bill also may potentially shed light on Hochul’s chief judge selection. Acting Chief Judge Anthony Cannataro, Associate Judge Rowan D. Wilson, and Associate Judge Shirley Troutman all made the short list of nominees Hochul has to pick from.

If the bill doesn’t pass and a sitting judge is confirmed as chief judge, the commission would have to begin its search process again, which could take up to 120 days.

“This is a common sense action to streamline the judiciary appointment process and allow the court to best move forward at full capacity,” Jonathan Heppner, a spokesman for Senate Democrats said in an email.

The chief judge position became vacant when Janet DiFiore stepped down last year.

“Given that the Court has been operating with a vacancy since last summer, this legislation would create a path to quickly restore the Court to full strength,” Hochul spokeswoman Hazel Crampton-Hays said in an email.

(Updated with Assembly bill information in fourth paragraph.)

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at

To contact the editors responsible for this story: Andrew Childers at; Bill Swindell at

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