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NY Post
New York Post
27 Mar 2023


NextImg:New judge list gives Kathy Hochul second chance after LaSalle disaster

The future of New York’s judiciary once again hinges on who Gov. Kathy Hochul might nominate to lead the state’s highest court.

Several avowed liberals made the list of seven finalists who were revealed Friday by the state Commission on Judicial Nomination tasked with screening potential judicial picks.– and the Democratic governor must now pick from them by law.

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Hochul can avoid fighting again with progressive state senators — weeks after they rejected her first pick, centrist judge Hector LaSalle – by choosing a liberal to be chief jurist of the Court of Appeals.

But all bets are off if Hochul picks another slightly more conservative candidate whose judicial records and professional background could provoke resistance from Democratic lawmakers aiming to push the state judiciary to the left.

For now, political observers expect a less contentious process this time around — unless Hochul chooses one name in particular from the list.

“I just don’t think the governor could go wrong, no matter who she nominates, except for the fact that if she nominates [acting Chief Judge Anthony Cannataro] — he’s almost certainly going to be shut down by the Senate,” said Albany Law School Professor Vincent Bonventre, an expert on the court, to The Post on Monday.

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State law requires Gov. Kathy Hochul to announce sometime between April 8 and April 23 a nominee to be chief judge of the state Court of Appeals.
Pacific Press/LightRocket via Getty Images

Cannataro has a record of siding with the relatively conservative bloc of justices in the court previously led by ex-Chief Judge Janet DiFiore, a Cannataro ally, who resigned under a cloud of scandal last summer. 

Other candidates on the list will likely face much less resistance from state Senate Democrats, with some appearing particularly attractive to left-leaning legislators.

Here is a rundown of the remaining six:

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State law requires Hochul, who is currently reviewing her options, to announce her pick sometime between April 8 and April 23, with the state Senate having 30 days to consider a nomination after it gets announced.

Brad Hoylman gesticulating with his arms while speaking in the state Senate chambers

State Senate Judiciary Committee Chair Brad Hoylman-Sigal has said the Court of Appeals should move in a new direction after years of a relatively centrist court.
Hans Pennink

Past decisions signed by Garry and Whalen might prove tricky if the rulings suggest a relatively conservative approach to interpreting the law, as was the case with LaSalle, who currently serves as the presiding judge of the Brooklyn-based Second Division, according to Bonventre.

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“You can’t possibly be that careful with all of them,” Bonventre said of the thousands of decisions involving any presiding judge. “So, would there be votes that more progressive members of the Senate could find to show that they were very, very conservative and against New York values? Yeah, almost certainly.”

Meanwhile, the liberal judicial records or professional backgrounds of Wilson, Halligan, and Stoughton could work in their favor if Hochul aims to pick someone who would likely cruise to confirmation in the state Senate.

But any attempt to placate left-leaning legislators could also create a political headache for Hochul across the aisle, as Republicans signal they will fight any pick who might push the Court of Appeals left.

“They want a court that reflects the political whims of the moment, and particularly, the political whims of the far left,” Republican state Senate Minority Leader Robert Ortt (R-Lockport) claimed to reporters Monday, referring to progressive lawmakers from the other side of the aisle.

Andrea Stewart-Cousins speaking in a room with a wooden background

Hochul pushed the nomination of Hector LaSalle even though state Senate Majority Leader Andrea Stewart-Cousins said he lacked the votes to get confirmed by her chamber.
AP

“We do not believe that. We think that as judges, and the chief judge especially at the highest level, you should interpret the law.”

But state Senate Democrats have had different ambitions for the court after the resignation of DiFiore last summer. Since then, there have been a series of controversial decisions by the Court of Appeals that were criticized by the left, including a case last year that invalidated congressional and state Senate lines approved by Albany Democrats.

Democratic lawmakers say an increasingly right-leaning top court at the federal level means state courts should move in the opposite direction, considering recent US Supreme Court decisions that have upended long-standing laws on topics such as gun rights and abortion.

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“It could not be a more important appointment, given the specter of the federal judiciary and particularly the Supreme Court and the urgency that necessitates a swift collection,” said state Senate Judiciary Chairman Brad Hoylman-Sigal (D-Manhattan), whose committee will consider the nomination.

LaSalle in February became the first gubernatorial court pick to ever get rejected by the state Senate, with progressives citing past court cases on abortion, labor rights and criminal-justice issues to argue that he has interpreted the law too strictly.

Progressives went so far as to warn Hochul against picking LaSalle, although she ended up nominating him anyways as she pivots toward the political center after a bruising gubernatorial campaign last year, when she was accused by Republicans of being too far to the left.

Hector LaSalle sitting alone on red leather benches in a balcony within the state Senate chambers in Albany.

State Senate Democrats voted down the nomination of Brooklyn appellate Judge Hector LaSalle last month thanks to progressive concerns that he was too conservative.
Hans Pennink

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This time around, Hoylman said the nomination process might be less contentious given the list of candidates.

“I think it’s a strong list, which gives the governor a lot of good choices,” Hoylman-Sigal said. “And it’s clearly in her hands. But I’m looking forward to working with her and making certain that we get a new chief judge as soon as possible.”

Political experts warn that another failed nomination could be politically devastating for the governor considering the humiliation progressives, activist allies and labor unions dealt her during the fight over LaSalle.

“If Hochul loses round two of this fight, she will be considered totally feckless by the legislature. But if the administration is doing its job, there will not be a repeat of round one,” an Albany insider told The Post.

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Hochul faced criticism for several missteps during the two-month fight over LaSalle, including her approval of legislative pay increases on New Year’s Eve without leveraging the money to sway Democratic state senators.

A second chance at nominating a chief judge could help Hochul move past the disastrous nomination of LaSalle, but only if she adjusts her tactics on getting her upcoming pick approved by the senate, observers said.

“She loses again? Open season on Kathy Hochul,” political consultant Hank Sheinkopf said.