A New Round in the Contentious Fight Over N.Y.’s Next Top Judge
Ever since Gov. Kathy Hochul’s nominee to become New York State’s top judge was blocked by a Democratic-led committee in the State Senate last month, the governor has been weighing whether to sue her fellow Democrats and compel the Senate to take a full vote on her nominee.
On Thursday, following a three-week standstill, a lawsuit was filed — not by Ms. Hochul, but by a Republican state senator.
The complaint, filed by Anthony H. Palumbo, a Republican from Long Island, argues that Senate Democrats violated the State Constitution by allowing a committee to kill the nomination of Justice Hector D. LaSalle. It echoes arguments made by the governor.
The lawsuit was filed in State Supreme Court in Suffolk County against the Senate chamber; Andrea Stewart-Cousins, the Democratic majority leader in the State Senate; and the 10 Democrats in the Senate Judiciary Committee who voted against Justice LaSalle.
Mr. Palumbo, who is the ranking minority member of the Judiciary Committee and voted in favor of Justice LaSalle, said that the judge “is entitled to an up-or-down vote by the full State Senate, not as a courtesy, but because the Constitution requires it.”
A spokeswoman for Ms. Hochul, who is not a plaintiff in the complaint, declined to comment on the litigation or say whether the governor would join the lawsuit. Mr. Palumbo said in an interview that he had not discussed the nomination or the lawsuit with the governor.
Mike Murphy, a spokesman for Ms. Stewart-Cousins, accused Senate Republicans, who are in the minority, of having “no basic understanding of law or the Constitution.”
Justice LaSalle’s rejection was unprecedented: The 10-to-9 committee vote that blocked his nomination on Jan. 18 marked the first time that a governor’s choice for chief judge has been voted down.
Even though Ms. Hochul is not part of the complaint, the legal battle could deepen the rift in an already bitter confrontation between Ms. Hochul and more progressive Democrats in the State Senate who have vehemently opposed Justice LaSalle over concerns that he is too conservative. It comes just one week after Ms. Hochul unveiled her $227 billion state budget proposal, which she must negotiate with Democrats who control the State Legislature over the coming months.
A lawsuit, depending on how far it progresses, could also set off a momentous constitutional clash that could test unsettled legal questions over the Legislature’s role in approving the governor’s judicial nominations.
At question is whether Senate Democrats violated the State Constitution by failing to consider Justice LaSalle in the full Senate, where all other nominations have been voted on and accepted since New York adopted its current process for selecting top judges in the late 1970s.
“We’re in uncharted waters,” Richard Briffault, a professor at Columbia University and an expert on state constitutional law, said last month.
The State Constitution says only that a governor must make judicial appointments with the “advice and consent of the Senate.”
The governor, as well as some legal experts, including Jonathan Lippman, a former chief judge who retired in 2015, have interpreted that to mean that all 63 members of the State Senate must be given the opportunity to vote on her nominee.
But Senate Democrats have argued that, as a coequal branch of government, they have the authority to enact their own rules and procedures to determine their inner workings, including how they consider judicial nominations.
Even if the lawsuit is successful and Justice LaSalle receives a full vote, it is unclear that he would be confirmed. A large number of the Senate’s 42 Democrats have publicly and privately voiced their opposition, especially after he was rejected by the Judiciary Committee. The governor would most likely have to seek yes votes from most, if not all, of the chamber’s 21 Republicans, in addition to about a dozen Democrats.
