When quitter Andrew Cuomo nominated former Westchester County District Attorney Janet DiFiore as Chief Judge of the New York Court of Appeals, there was, to be mild, unhappiness. This was not the choice one wanted from a Democratic governor, a conservative prosecutor in the top state judicial post. But Cuomo had the juice to overcome objections, and since there was little expectation that Cuomo’s pick wouldn’t be approved, others fell in line so as not to make enemies with this unfortunate choice.
Cut to yesterday’s judiciary committee vote in the New York Senate for formerly fill-in, now newly-elected, governor Kathy Hochul of the hinterlands. It did not go as well as Judge DiFiore’s vote.
After a combative hourslong hearing, the Senate Judiciary Committee voted 10-9 against the nomination of Justice Hector D. LaSalle, whose nomination was strongly opposed by progressives who saw him as too conservative.
The committee’s rejection — the first time that New York lawmakers have voted against a governor’s choice for chief judge — laid bare how vulnerable Ms. Hochul, a Buffalo-area Democrat, may be to a challenge from her own party. All 10 senators who voted against the judge were Democrats; two Democrats voted in favor of Justice LaSalle, while one Democrat and all six Republicans on the committee voted in favor “without recommendation.”
That there were problems with Justice LaSalle was made abundantly clear. I opposed his nomination because he was another former prosecutor being nominated for Chief Judge, making ex-prosecutors the 4-3 majority on the Court. It’s not that former prosecutors shouldn’t be judges, or don’t make good judges, but that they shouldn’t constitute the majority bloc.
Others grieved that some of the decisions Justice LaSalle signed onto reflected his positions as being anti-abortion, anti-union and anti-civil rights. This gave rise to the ill-conceived defense from former First Department justices, which did Justice LaSalle no favors.
The expectation following Hochul’s announcement of his pick was that she would reconsider in light of the vehement opposition within her “own” party and pull the nom. After all, even the former Erie County Clerk could count to ten and figure out that she lacked the numbers to vote him out of committee. Instead, she pressed her clout and challenged the progressive senators to reject her, the newly-elected after almost losing to a Republican sacrificial lamb misfit, Governor’s choice. So they did.
The fight over the chief judge nomination, usually a noncontentious ordeal, has become the most consequential political challenge of Ms. Hochul’s first full term after being elected in November. The quarrel has set her against more progressive Democrats in the State Senate, testing her relationship with lawmakers as she begins to push her recently unveiled policy agenda in Albany.
The governor’s pick for top judge had never before been rejected at all, no less by a Senate majority of her own party. Historically, the Republicans owned the NY Senate while the Democrats ran the NY Assembly. If anything was to get done, there had to be moderation and compromise, or at least enough money to go around for both teams. But Trump cost the Republicans the Senate and the Dems took over both houses in Albany, with rookies filled with far more passion than competence holding office. This meant that the governor was the last moderating voice in New York, and was charged with herding the feral legislators whose grasp of law and governance was deep enough to cover a bumper sticker.
Was Hochul up to the job? Rather than accept the outcome, Hochul sounded more like the governor of the opposition vowing to fight because the vote was rigged.
The governor on Wednesday criticized the hearing as unfair, claiming that “the outcome was predetermined” after the State Senate suddenly expanded the committee this month to add more Democrats, all three of whom voted against Justice LaSalle.
Even though there was a good likelihood that a straight vote in the Senate would have confirmed Justice LaSalle, the Democratic majority leader realized which horse to back, and it wasn’t Hochul.
Shortly after, Andrea Stewart-Cousins, the Democratic majority leader in the State Senate, seemed to rule out that scenario, adding that her conference was interested in a chief judge who could “change the trajectory” of the Court of Appeals’ conservative-leaning rulings in recent years.
“It’s clear that this nominee was rejected and that’s it,” she said. “We have to find a nominee that will be supported by the majority of the Senate and then get on with that.”
When former Nassau County Dem leader, now state party leader, Jay Jacobs backed Hochul, the fill-in as candidate for governor, over former Nassau County Executive and congressman in the seat now held by George Santos, if that really is his name, Tom Suozzi, because she was easier to control and as pseudo-incumbant could more easily raise money, he didn’t recognize that the party he led left office with Andy Cuomo.
No longer was New York a two-party state of Democrats and Republicans, but a two-party state of Progressive Democrats and everybody else. While the Senate may have technically rejected Justice LaSalle, what they really rejected was Kathy Hochul.
While I wasn’t a fan of Justice LaSalle, he didn’t deserve the tarring he suffered. He wasn’t a bad judge or person, but simply not sufficiently dedicated to producing the correct progressive outcome no matter what, which is what one might well argue is what is expected of a good judge. And even good judges get decisions wrong or have a perspective about legal issues that some of us disagree with. But then, liberal Dems can disagree without being disagreeable, because we don’t consider it a moral failing worthy of the figurative death penalty to rule for the wrong tribe.
As for Hochul, there was nothing to suggest that this person who happened to be a place-filler in a slot of Lieutenant Governor at the fortuitous time when Cuomo was disingenuously smeared by the ambitious Attorney General Tish James, had the chops or gravitas to be a governor. Could she pull it off? No. No she could not. And just like that, the Democrats in the very Democratic state of New York split in two, perhaps foretelling what the future holds.