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Senate GOP files a lawsuit to force a vote on Hochul's chief judge nominee

Judge Hector LaSalle sits at a table
Karen DeWitt
New York State Public Radio
Judge Hector LaSalle at his state Senate confirmation hearing on Jan. 18, 2023.

Republicans in the state Senate have filed a lawsuit to force a vote of the full Senate on Gov. Kathy Hochul’s nominee for the state’s next chief judge, Hector LaSalle.

The Senate Judiciary Committee, which is dominated by Democrats who hold the majority in the chamber, rejected LaSalle last month by a 2-to-10 vote after a five-hour hearing. Opponents, including several leading Democratic senators, said they believed LaSalle was too conservative and they want to see the high court change direction to become more liberal.

The six Republicans and one Democrat on the committee voted to advance LaSalle’s name from the committee, but without recommendation.

After the vote, Senate Majority Leader Andrea Stewart-Cousins said she believed that the Senate had fulfilled its duties under the state’s constitution.

“It’s clear that this nominee was rejected,” Stewart-Cousins said on Jan. 18. “And that’s it.”

But Hochul, who is also a Democrat, earlier had said she believed that the constitution requires all 63 senators to vote.

“The constitution of the state of New York is clear,” Hochul said on Jan. 12. “The New York State Senate has to advise and consent the governor on her appointment.”

Republicans in the Senate sided with Hochul.

Now, the ranking Republican on the committee, Sen. Anthony Palumbo, has filed a lawsuit in state Supreme Court in Suffolk County on Long Island. Palumbo, in a statement, said the Judiciary Committee serves “only as an advisory body” to the rest of the Senate, and the state’s constitution requires that the full Senate must cast a vote.

Senate Minority Leader Robert Ortt said in January that his GOP conference was not going to rush to judgment regarding LaSalle.

“And they believe that he should get a hearing and a floor vote,” Ortt said on Jan. 12.

Mike Murphy, a spokesman for the Senate Democratic majority, said in a statement that the Democrats have not been served with any lawsuit. He said it is “embarrassing but not surprising that the Senate Republicans have no basic understanding of law or the constitution.”

Hochul, who had threatened her own lawsuit over the confirmation process, declined through a spokesperson to comment on the court filing.

New York state constitutional experts disagree on whether the lawsuit will be successful.

Noah Rosenblum, a law professor at New York University, said by his reading of the constitution, a governor is not entitled to a full Senate vote on a nomination that requires the advice and consent of the Senate. Rosenblum spoke on Albany public radio station WAMC before the lawsuit was announced.

“The constitution does not give any gubernatorial nominee a right to a floor vote,” Rosenblum said. “What exactly is the constitutional right that needs to be asserted here? And I just can’t find one.”

Albany Law School professor Vin Bonventre, also speaking on WAMC before the lawsuit was filed, disagrees.

“The state constitution speaks of ‘the governor shall appoint with advice and consent of the Senate,’” Bonventre said. “It doesn’t say part of the Senate.”

Even if the lawsuit is successful, there’s no guarantee that LaSalle would gain enough votes to be confirmed to be chief judge. GOP senators have not committed to vote for LaSalle, and without them, he would likely be rejected.

Karen DeWitt is Capitol Bureau chief for the New York Public News Network, composed of a dozen newsrooms across the state. She has covered state government and politics for the network since 1990.