Governor Hochul may be getting ready to take the confirmation battle for her Court of Appeals chief judge nominee, Hector LaSalle, to the courts. At issue will be whether a no vote in the Judiciary Committee can stop the appointment, or whether the full Senate must vote on his appointment. She has the better argument that the full Senate must vote LaSalle up or down.

Democrats expanded the Judiciary Committee from 15 members last session to 19 members beginning this month. Senate Democrats then appointed senators opposed to LaSalle’s appointment.

Senator Jessica Ramos made her position clear before being appointed to the expanded committee. “After reviewing Justice LaSalle’s record and speaking with unions and my constituents, I have concluded that I will vote “no” if this nomination is brought to a vote.” And Senator Shelley Mayer stated prior to her appointment “I have decided to announce publicly that I will be voting “no” on any vote to confirm PJ LaSalle to the position of Chief Judge” (emphasis added).

But stacking the committee is more theater than substance: the Judiciary Committee cannot kill the LaSalle appointment because a Court of Appeals appointment is not conditional on a committee’s actions. Nor is a full Senate vote optional.

Our state Constitution sets out the basic rules for our government, as adopted by the people. It provides that for Court of Appeals vacancies, “[t]he 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 …”

There’s nothing in the Constitution to suggest that the full Senate’s vote to consent, or not, to an appointment is optional. Nor is there anything to suggest the Senate can devise committee structures and rules to avoid a full Senate vote on a Court of Appeals appointment.

The Senate by its rules cannot avoid its constitutional obligations. Thirty years ago, in Matter of King v. Cuomo, the Court of Appeals held that “the discrete rules of the two houses do not constitute organic law and may not substitute for or substantially alter the plain and precise terms of [the Constitution’s] primary source of governing authority.”

In King, the Court of Appeals held that legislative rules permitting recall of bills submitted to the Governor violated the law making process set out in the Constitution. The Court distinguished involving itself in the internal political affairs of the Legislature’s rules and reviewing and enforcing a process regimen set out in the Constitution.

The Constitution’s mandatory language is not controversial. Court of Appeals appointments getting a full Senate vote has been the practice in New York for 45 years, since the people amended the Constitution to make a Court of Appeals judge an appointed official, rather than elected.

The courts should be available to Hochul to enforce the Senate’s obligation to hold a full vote on her appointee. And they should order the Senate to do so if the Judiciary Committee tries to kill the appointment.

Under the Senate’s current rules, a committee can only vote to recommend or not recommend an official for an appointment and to report to the Senate. Presumably LaSalle’s opponents are relying on the Judiciary Committee killing the appointment by not reporting on it. But the Senate should not be saved from a full vote by such committee inaction.

The requirement that the full Senate vote on a candidate exists for good public policy reasons. The Senate’s advice and consent on appointments should assure that the Governor puts forward qualified candidates for appointed positions.

For Court of Appeals appointments, the Constitution provides belts and suspenders by limiting the Governor’s selection to candidates from a short list created by a Judicial Nominating Commission. New Yorkers designed the process to make Court of Appeals appointments merit-based.

A vote by the full Senate on a Court of Appeals appointment then has the added benefit of that body being politically responsible for a decision to confirm or reject an appointment.

In Federalist No. 76 Alexander Hamilton argued for the senate’s advice and consent role from the perspective of the executive having an outsized role. “Though it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the Senate, yet the supposition that he could in general purchase the integrity of the whole body would be forced and improbable.”

Here, the reverse may be in effect, Democrats controlling the Senate seek to avoid political liability for all their members by stacking the Judiciary Committee with a few vocal LaSalle opponents who will have an outsized role in rejecting the candidate.

Hamilton added in Federalist No. 77 that for the senate “the censure of rejecting a good [nomination] would lie entirely at the door of the Senate.” “If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.”

The argument for a full Senate vote has political implications, but only invokes process, as set out in the state Constitution. Hochul should not shy away from challenging the Senate in the courts. And the courts should not hesitate to compel the Senate to fulfill its duty under the Constitution. Let the political chips fall where they may but save the process for the sake of the constitutional rule of law.

About the Author

Cam Macdonald

Cameron J. “Cam” Macdonald is an Adjunct Fellow with the Empire Center and Executive Director and General Counsel for the Government Justice Center.

Read more by Cam Macdonald

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