Hochul’s Fight Over Chief Judge Tees Up `Constitutional Crisis’

New York Gov. Kathy Hochul is at an impasse with her fellow Democrats in the state Senate over her choice for chief judge after a key committee rebuffed the nomination.

The dispute could lead to litigation over how the state’s judicial confirmation system works. The New York State Bar Association is creating a special committee to review the appointment process and make nonbinding recommendations to the governor and state Legislature.

Democratic leaders, who hold a supermajority in the Senate and can overrule Hochul, say Wednesday’s Judiciary Committee vote is the end of the road for Hector D. LaSalle. They say the lengthy process of filling the vacancy should restart. Hochul maintains the law requires the nominee to go before the full 63-member Senate for a vote. She called the committee hearing unfair and said the outcome was “predetermined.”

If Hochul, representing the state’s executive branch, takes its legislative branch to court, it would create a “constitutional crisis,” Judiciary Committee Chairman Sen. Brad Hoylman-Sigal (D) told reporters following Wednesday’s hearing.

On Thursday at an unrelated event, Hochul said, “We’re certainly weighing all our options” when asked about a potential lawsuit. Her office didn’t return a request for comment about possible court action.

The standoff pits the newly elected governor against her Democratic partners in the state Senate. It also leaves the Court of Appeals with a 3-3 partisan deadlock. Constitutional and court observers are scratching their heads at what happens next. The situation is unprecedented. No judicial nominee has failed at the committee stage since the current system was put in place in 1978.

A court fight could damage other items on Hochul’s policy wish list. “We are strong supporters of the governor’s agenda, and I hope this is a bump in the road that will be overcome swiftly and that we will return to business as normal next week,” Hoylman-Sigal said. “I hope that litigation is not our future.”

A lawsuit brings up a plethora of questions, he said. Among them: Who would have standing to sue? Which court would make the decision, “given that this is about a nominee for New York’s highest court?”

“How much time and effort and energy would be expended on a lawsuit of this nature,” Hoylman-Sigal asked.

The Court of Appeals is composed of six associate judges and a chief judge, each serving 14-year terms.

The chief judge also oversees the state court system, which is one of the largest in the nation with a budget of about $3 billion. LaSalle, who currently serves as presiding justice of the New York Supreme Court’s Second Department, was nominated to replace Janet DiFiore, who retired in August.

According to the Law

New York’s judge selection process has become more politicized compared to prior years, when the state Senate served more as a ceremonial rubber stamp for the governor’s judicial appointments.

Politicians were reminded of the importance of judicial choices last year when a state redistricting ruling favored the position of Republicans, and two US Supreme Court decisions overturned abortion precedent and a New York law limiting who could carry a handgun in public.

Under the state Constitution, the governor is required to select her nominee for the state Court of Appeals from a list of candidates selected by the independent Commission on Judicial Nomination. The appointment is made “with the advice and consent of the Senate.”

Hochul and some legal observers say that means the matter must go before the full Senate. “It doesn’t say that the Senate gets to delegate to the committee. It says that the Senate advises and consents to the nomination,” said Vin Bonventre, a law professor at Albany Law School.

The vote “must go to the floor, " said former Chief Judge Jonathan Lippman, who served from 2009 through 2015.

University at Buffalo Law Professor James Gardner disagreed, saying New York’s process is similar to the federal system. The state Senate “creates its own procedure to discharge its constitutional responsibility,” he said.

“There’s no chance for any litigation to succeed on this,” Gardner said, adding that the constitution commits decision making to the legislative body.

Bonventre said the governor could make the case that the statute says “the Senate,” not the Senate committee.

Other parties could also have standing to challenge the matter in court, including LaSalle and Senate Republicans, many of whom wanted to send the matter to a full floor vote.

Committee in Limbo

Senate Majority Leader Andrea Stewart Cousins (D), President Pro Tempore, and Senate Secretary Alejandra Paulino on Wednesday sent a letter to Hochul saying the nomination was “rejected.”

The question of which legislative body can reject the candidate determines what happens next for Hochul’s nomination and the confirmation process.

Without a clear rejection, there’s nothing to trigger the Court of Appeals clerk to notify the nominating commission to begin its search for another candidate. A spokesman for the Court of Appeals declined to comment on the process, and the committee has remained silent.

If the committee is required to start over, it would have 120 days to select seven potential candidates, which the governor would have 30 days to select her nominee from. The Senate would then have 30 days to confirm or reject the nominee—resulting in up to six months with a vacant position.

The committee, however, has discretion in how it undertakes the process. Bonventre said the panel could expedite the search by adding a new candidate to the list of six it sent to Hochul in November.

“I hope that we turn the page on this chapter and that the governor finds a nominee that my colleagues can coalesce around,” Hoylman-Sigal said. “I think there are plenty of candidates on the list that the committee of nomination presented, but on a future list as well.”