Will Hector LaSalle Be the Next Janet DiFiore?

GOVERNOR KATHY HOCHUL’S nominee for chief judge of New York’s highest court is on thin ice. Fourteen Democratic state senators have announced their opposition to confirming Judge Hector LaSalle as the next head of the Court of Appeals, leaving him in need of Republican support to win confirmation in the Democratic-supermajority state Senate.

Much of the opposition to LaSalle centers around two decisions he signed on to at the mid-level appeals court where he now serves. Multiple senators, reproductive rights groups, and at least six labor unions — including the powerful 32BJ SEIU — have cited these decisions to explain their opposition, arguing that they are anti-labor and anti-reproductive freedom. They predict that LaSalle would join the conservative bloc that has recently controlled the court, but whose grip was threatened when former Chief Judge Janet DiFiore unexpectedly resigned this summer.

“You’ve got 5,000 cases to go through and cherry-picking this or that can always be done to sandbag anyone,” said New York Democratic Party chair Jay Jacobs, a vocal supporter of Hochul’s pick. Speaking to New York Focus, he pointed to other cases where LaSalle ruled in favor of labor and criminal defendants. “What people need to understand is that judges don’t make the law, judges interpret the law.”

But there’s another reason some observers predict LaSalle would tend to agree with the court’s conservative bloc: In eight out of nine recent cases, he already has.

LaSalle has heard two cases as part of the Court of Appeals, thanks to a provision in the state constitution that allows lower court judges to sub in when one of the high court’s judges recuses themself. In both cases, LaSalle voted with DiFiore and the conservative bloc she led. In one case, White v. Cuomo, LaSalle cast the deciding vote to permit mobile sports betting in New York, over a dissent from the court’s three more liberal judges.

And at least seven cases that LaSalle ruled on in his court reached the Court of Appeals in its most recent term. In six of them, he, DiFiore, and the conservative judges voted the same way.

In three of those cases, they voted against criminal defendants challenging aspects of their sentences and convictions. In two others, they voted to limit the ability of New Yorkers to sue police departments for failing to enforce orders of protection and out-of-state companies for selling faulty products. Judges Jenny Rivera and Rowan Wilson, the two most liberal voices on the court, dissented in all five of those cases.

DiFiore did vote to overturn a decision that LaSalle voted for once in the most recent term, in a case concerning sex offender registries. And in one other decision in that term, the Court of Appeals unanimously upheld LaSalle’s ruling.

Jonathan Lippman, who preceded DiFiore as chief judge of the Court of Appeals and wrote an op-ed in support of LaSalle, said these cases don’t amount to evidence that LaSalle would continue DiFiore’s legacy.

“I’m not going to predict how the judge will vote once they get on a particular bench,” he told New York Focus. “He is by any standard in the mainstream of legal thinking.”

Carol Robles-Román, a lawyer who served in the Bloomberg and Pataki administrations and member of Latinos for LaSalle, a group formed to support his confirmation as chief judge, agreed. “You can’t make an assumption because he sat twice on a panel,” she told New York Focus. “You’re not gonna find him in one camp or the other.”

Peter Martin, who has spearheaded the campaign against LaSalle as an organizer with the nonprofit Center for Community Alternatives, took a different view. “The fact that Justice LaSalle and the entire conservative bloc on the Court of Appeals voted in unison in almost every case they all heard recently tells us everything we need to know,” he said.

Last month, Hochul herself addressed the two cases that have attracted the most criticism. One restricted the state attorney general’s investigation into an anti-abortion counseling clinic for potentially practicing medicine without a license. The other allowed a large corporation to sue union leaders for defamation, despite New York law barring most lawsuits against union leaders.

“If you actually read those cases that are in question, they have nothing to do with a woman’s right to choose,” Hochul argued. She called the decision to allow corporations to sue union leaders “a procedural decision to send it down to the trial courts.”

In recent days, additional rulings have come under scrutiny. In one case from 2014, LaSalle voted to affirm a conviction despite the defendant, a Black man, arguing that the prosecutor had committed unconstitutional discrimination by rejecting all the potential jurors who were dark-skinned women.

The Court of Appeals unanimously overturned LaSalle’s decision, in an opinion by Sheila Abdus-Salaam, the first Black woman to sit on the Court of Appeals, who ordered a new trial.

If LaSalle fails to win confirmation, he would become the first nominee to the Court of Appeals ever to be rejected by the state Senate.

Some Republicans have indicated they may be willing to vote for him, but even that may not be enough to save Hochul’s pick. Senate Democratic leadership usually doesn’t allow votes on bills or nominations that require Republican support to pass, preferring not to take steps that are opposed by significant portions of the Democratic supermajority in the 63-seat body.

On Wednesday, Senate Majority Leader Andrea Stewart-Cousins, a Democrat, said that LaSalle would go through the confirmation process, but also noted that “we’re looking for the court to go in a very different direction, and this candidate is difficult as it relates to that.”

Last month, Hochul suggested that some senators will switch to supporting LaSalle as they become more familiar with his record. Signs so far point to the opposite. On December 31, Senator Shelley Mayer, a moderate Democrat, announced that after meeting with LaSalle the day before, she had decided to oppose his confirmation.

And on Wednesday, Senate Democrats announced that they plan to expand the Senate’s Judiciary Committee, which will vote on whether to recommend LaSalle to the full Senate, by four seats. One of the new additions is Democrat Jessica Ramos, who opposes LaSalle’s confirmation. The other three are not yet public.