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hector lasalle
'Extraordinary Repudiation': NY Senate Rejects Hochul's Right-Wing Judicial Nominee
"We thank the members of the state Senate who stood with working New Yorkers in opposing a judge with a troubling judicial record on workers' rights, abortion rights, and racial justice," said one Hector LaSalle critic.
Feb 16, 2023
The New York State Senate's Democrats on Wednesday delivered a "major embarrassment" for and "extraordinary repudiation" of Democratic Gov. Kathy Hochul, rejecting Hector LaSalle, her anti-choice, anti-union nominee to lead the state's top court.
"We thank the members of the state Senate who stood with working New Yorkers in opposing a judge with a troubling judicial record on workers' rights, abortion rights, and racial justice," said New York Working Families Party director Sochie Nnaemeka.
"In the wake of an extremist U.S. Supreme Court and a New York Court of Appeals captured by corporate and conservative interests," Nnaemeka added, "we urge Gov. Hochul to return with a chief judge nominee with a clear and unequivocal record of protecting the rights of working people."
\u201cJust wow. Hochul:\n\u2013Disinvited a union leader from an event for criticizing her\n\u2013Had Hakeem Jeffries help\n\u2013Dedicated her MLK day speech to LaSalle\n\u2013Threatened to sue Dems after they rejected LaSalle; had GOP do it for her\n\u2013Got LaSalle rejected again anyways\nhttps://t.co/nxsWBQH2HQ\u201d— Prem (@Prem) 1676493578
Wednesday's 39-20 vote fell mostly along party lines, with all Republicans present except state Sen. Mario Mattera (R-2) supporting Lasalle and all but one Democrat, Sen. Monica Martinez (D-3), voting against him. It came after the Senate Judiciary Committee last month narrowly opposed the nominee.
While Senate Democrats argued the panel's vote was sufficient to block the nomination, Hochul claimed the state constitution required a full chamber vote and even considered a lawsuit. However, it was the committee's top Republican, Sen. Anthony Palumbo (R-1), who filed suit last week.
As The New York Timesreported:
While the vote could help quell a weekslong intraparty battle that had overshadowed legislative business in Albany, it is sure to strain the governor's relationship with Democrats in the Legislature as they begin to negotiate over the state's budget, which is due in six weeks.
It also means that state officials will need to restart a monthslong process to select a chief judge, who besides sitting on the Court of Appeals is also tasked with overseeing the state’s complex court system, which has thousands of judges and staff.
Hochul said in a statement Wednesday that "this vote is an important victory for the constitution. But it was not a vote on the merits of Justice LaSalle, who is an overwhelmingly qualified and talented jurist."
The Times noted that LaSalle "defended his record during a five-hour legislative hearing last month in which he declared his support for reproductive and labor rights, arguing that the cases his critics singled out had hinged on procedural questions."
While reaffirming her support for her defeated candidate, Hochul also said, "Now that the full Senate has taken a vote, I will work toward making a new nomination."
Opponents of LaSalle, including New York State Senate Majority Leader Andrea Stewart-Cousins (D-35) and Deputy Leader Michael Gianaris (D-12), framed the vote as necessary to shift the focus to a new candidate and other important issues.
"Today, we again rose to our leadership responsibilities and ended the ongoing distraction of the Justice Hector LaSalle nomination," said Stewart-Cousins. "We have a state to run. This court case would've dragged on for months and stymied our judicial system. It was time to put this matter to rest."
\u201cGrateful for Senator @AndreaSCousins sensible leadership in advancing the business of the State of New York and preserving the integrity of our courts.\u201d— Janai Nelson (@Janai Nelson) 1676519450
Gianaris declared that "the failure of some in our state to respect the proper role and independence of this Legislature has led to a crisis affecting all branches of government. It now falls to our Senate majority to again be the adult in the room and move our state past this deadlock that would have otherwise dragged on for even more months while our top court is without a properly appointed chief judge and while we are in the midst of negotiating a state budget that must continue our economic recovery."
"It is the Senate's constitutional right to determine how it operates and to reject nominees that do not have the support of a Senate whose confirmation role is critical to the balance of powers," he stressed. "My colleagues and I voted against this nomination because we need a chief judge possessed of a diverse professional background and who represents a departure from the tenure of former Chief Judge Janet DiFiore, and this nominee was not that person. It is now time to find a new nominee who can get the required support to be confirmed."
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Why Defeating Hochul's Right-Wing Judicial Nominee Is Important Beyond New York
On the threat of legal theories that pretend laws written by the powerful to protect the powerful are somehow not ideological.
Feb 10, 2023
To recap for anyone not lucky enough to be a New Yorker: for the last few months, leftists in the state have been fighting a fierce battle with Governor Kathy Hochul over her decision to nominate a conservative judge, Hector LaSalle, to lead the Court of Appeals, New York's highest court. Hochul lost the first (and possibly last) skirmish in that battle, as the State Senate's Judiciary Committee voted not to send LaSalle's nomination to the floor for a full vote, though it remains possible Hochul will sue the State Senate to try and force that vote.
LaSalle's initial defeat is good news for anyone who wants to halt the Court of Appeal's recent rightward drift. The judge's record indicated he would rule in favor of prosecutors and police, and against defendants and suspects; in favor of corporations, and against unions; and that his positions on issues from consumer protection to domestic violence to immigrant rights were indistinguishable from those held by a Brett Kavanaugh or Amy Coney Barrett.
As nice as it is to stop a conservative judge, there's a larger importance to the LaSalle nomination and (hopeful) defeat, one that is relevant to our national fights over judges, and even to how we think and talk about the law. The people pushing LaSalle were also pushing the false, but terribly common, idea that law is a neutral body of rules and precedents from which certain truths can be divined, and certain rulings naturally flow. In this reading, the statutes and judicial rulings that comprise the law are different from essays, novels, films, the Bible, or other texts, all of which lend themselves to multiple, equally valid interpretations. Law is special, akin to mathematics, easily knowable and usually certain. LaSalle's defeat represents a defeat of this false ideology.
This lie, indulged in by Republicans and Democrats both, is perhaps the most destructive one in our national discourse, and all too often the excuse for why we can't have a society that cares for everyone. It's a lie with a long history, undergirded by seductive philosophical musings and parroted by powerful parties with nefarious vested interests.
It's also in direct competition with another school of thought that sees law more realistically, as the product of flawed humans being wielded by other flawed humans. LaSalle's critics may not have been versed in this philosophy called legal realism, but they intuitively knew that judges who rule for the powerful and against the oppressed may do so for reasons found in their own heads, not in any statute or decision.
LaSalle's defenders framed his record in a way that will be familiar to anyone who has closely watched Supreme Court confirmation battles. When critics pointed to the awful real-world consequences of many rulings he supported, we were told that such rulings were just "procedural" or that LaSalle was, sadly, powerless to rule otherwise, so constrained was he by the iron shackles of precedent. To take one example, LaSalle's vote to allow Cablevision to sue its union workers personally for union activity undertaken during a labor struggle was excused as a decision about mere process. Don't you get it?, cried Hochul and her minions. Law is complicated! Sometimes injustice must be sanctioned, because that's how law works! How naïve of you to think otherwise!
Hochul and her allies didn't engage on the substance of LaSalle's cases—who won, who lost, and what happened. Instead, their apologetics emphasized the impersonal processes of law, the alleged rules of the game, the highly technical nuances that laypersons just couldn't understand. In this, they drew inspiration from what is probably the dominant theory of law today among academics: so-called "legal positivism," and specifically the version thereof popularized by philosopher H.L.A. Hart in his 1961 book The Concept of Law. Nothing better explains the defenses of LaSalle than legal positivism.
Legal positivists believe that law can be accurately determined to a high degree by review of statutes and decisions. Individual judges are of minimal importance, their role reduced to an intake of precedent and an output of analysis. Legal positivism is not concerned with the social, cultural, or psychological dynamics that led to the creation of any given law or judicial decision—the focus is on the process by which law is created, not the reasons for its creation. In this sense, legal positivism is a theory that discourages looking beyond the textual documents that comprise a legal system. All you need is right there on the page.
Hart himself believed most cases were "easy," and required minimal judicial creativity. When John Roberts told Congress that the job of a judge is akin to an umpire, calling balls and strikes, he was tipping his hat to legal positivism.
Legal positivism is a harmful philosophy, not least because it claims neutrality in the form of deference to existing "rules." But of course, that's wrong, because the rules themselves are ideological, written by the powerful to protect the powerful. LaSalle's critics have implicitly understood this. They may not have known it, but by focusing on the consequences of his rulings, and arguing that LaSalle could and should have ruled differently, the anti-LaSalle coalition was standing up for legal realism, and against the positivists.
"Law is what the judge had for breakfast." This old quote—usually attributed to the late legal philosopher and judge Jerome Frank—has alternately been used by the enemies of legal realism to highlight the supposed radicalism of this school of legal philosophy, or by the most radical realists themselves, to boil their ideas down into one pithy phrase. In that sense, it is sort of the "Defund The Police" of jurisprudence, embraced by both its proponents and their worst critics.
Everyone, though, agrees on what it is means. In sum, a judge's rulings do not emanate from careful study of precedent and statute, which will allow for only one "correct" ruling. Rather, judges are human beings (one of Frank's greatest works is called "Are Judges Human?") with their own biases, predilections, histories, neuroses, and yes, ideologies, and their rulings—what we call "law"—are a mishmash of all those things stirred up and spewed across the page. Even what the judge had for breakfast factors in (something that turns out to be quite literally true). Law has no gravitational center—it is whatever the powerful person in the robe decides, for whatever reasons they decide it.
The funny thing is that pretty much every attorney who has actually practiced in a courtroom accepts the general precepts of legal realism (which is the progenitor of modern theories like critical legal studies, or Marxists analyses of law). Judges often make wacky rulings. They aren't usually high-profile—maybe no one outside of the courtroom will ever even know about them—but they are vitally important to the litigants being ruled over. Any practicing lawyer can tell you about the cases they knew they lost the second the judge opened their mouth, before the evidence was presented or legal arguments made, because the judge decided they liked one side and didn't like the other (and this is a mild example—imagine the judge ruling on the riot his wife helped start). This is a reality of litigation.
But when lawyers leave the courtroom and ascend to the halls of power and/or the ivory towers, they suddenly become great defenders of this immense, alienating system we call law, and legal positivism gives them the tools to defend it. There is a great desire to believe that law is larger than individuals, that it is a system we can trust and that we can "know" in an epistemological sense. If the process is fair, perhaps we won't be so angry after it chews us up and spits us out.
Nowhere does this ideology become clearer than during fights over judicial appointments. Any given judge's defenders, conservative or liberal, strive to cast their preferred judge as the "neutral" choice, the one who will not "legislate from the bench" (a literally meaningless phrase), but will instead pull out their trusty old trowel and brush and excavate until the correct answer—of which there is only one—reveals itself. This is how the law maintains its legitimacy in the eyes of the public. Judges, we are told, are not politicians but archeologists, and do not create but only reveal. This has been the trope embraced by the LaSalleians, just as it was the trope of the Kavanaugh partisans, the Coney Barrett boosters, the Alito enthusiasts. (Indeed, Ruth Bader Ginsburg's absolute refusal to acknowledge that perhaps it might be better for her to retire under a Democrat than a Republican is a very legal positivist framework, as it eschews politics in favor of some nebulous judicial neutrality.)
That this is such clear bullshit is supremely frustrating. One wonders if Kathy Hochul somehow missed the recent loss of the alleged "right" to abortion, on the books for almost 50 years. A result like that should call into question the idea that law is stable, knowable, and easily grasped.
Understand—there is no correct answer to the question of whether the Constitution recognizes a right to abortion. Rather, there are schools of judicial interpretation—which are always and without exception embraced by judges to give legal weight to that judge's preexisting ideology—that will find one way or the other. When the Supreme Court has a certain number of one sort of ideologue, abortion will be a constitutional right. When it has the other, it will not.
None of LaSalle's critics know why he ruled against union workers, or in favor of phony "crisis pregnancy" centers, or to allow prosecutors to strike dark-skinned women from a jury (yes, he ruled this way). It doesn't matter. What matters is that these decisions protected the powerful at the expense of the powerless. If your ideological leanings involve uplifting the powerless, you should not want a judge who would rule in this way, no matter his excuse for doing so.
It is a huge credit to LaSalle's critics that they focused their attack on the outcomes of rulings rather than LaSalle's alleged judicial philosophy, or his "experience," or respect for precedent. Precedent is not real—it's an excuse for a judge to do what they were already determined to do, something rightwing judges understand well.
We should never trust someone who claims that law is independent from ideology, or from politics, or from how a judge feels about dark skin or unions or abortion. Law is politics practiced in a courtroom instead of a ballot box. Hector LaSalle is as much a politician as his benefactor, Kathy Hochul. And if you wouldn't vote for LaSalle to represent you in a legislative body, there's certainly no reason to want him to be a judge, no matter what excuses he proffers for the ills he has done.
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'Huge Win': NY Senate Panel Rejects Hochul's Right-Wing Judicial Nominee
State Sen. Kristen Gonzalez credited "the work of activists and organizers on the ground who sounded the alarm early on LaSalle."
Jan 18, 2023
Progressive lawmakers and rights advocates in New York celebrated Wednesday after the state Senate Judiciary Committee voted against Democratic Gov. Kathy Hochul's nominee to serve as the state's top judge, Justice Hector LaSalle—whose rulings regarding abortion rights, labor, and criminal justice made his nomination "an absolute disaster," according to one critic.
The panel voted 10-9 against allowing LaSalle's nomination for chief judge of the state Court of Appeals to proceed to the state Senate floor.
The vote followed a lengthy hearing at which some of the Democrats questioned the judge about his past rulings including a 2015 decision in favor of Cablevision, which wanted to be able to sue union leaders for criticizing the company's response to Hurricane Sandy, and one which shielded an anti-choice "crisis pregnancy center" from a state investigation into whether it was practicing medicine without a license.
"Based on your record, I think that it's not unfair for people to project what some of your decisions might be," state Sen. John Liu (D-16), told LaSalle.
According to The New York Times, Hochul "has not ruled out taking legal action to force a vote of Justice LaSalle on the full Senate floor."
"Now all eyes turn to Hochul," Alex Sammon of Slate tweeted.
\u201cWow. LaSalle goes down in the judiciary committee with only two Democrats in support. Now all eyes turn to Hochul, who has threatened to sue the Senate Dem caucus over this result, and has already retained a lawyer to do so.\u201d— Alex Sammon (@Alex Sammon) 1674071867
Hochul was joined by U.S. House Minority Leader Hakeem Jeffries (D-N.Y.) in pushing for LaSalle's confirmation, while progressives including Rep. Alexandria Ocasio-Cortez (D-N.Y.) rallied their supporters against the judge.
Progressive state lawmakers swiftly came out against the nomination when it was announced earlier this month, with state Sens. Jabari Brisport (D-25) and Kristen Gonzalez (D-59) making clear that they would not support LaSalle.
The Democratic supermajority in the state Senate "doesn't need to tolerate Gov. Hochul acting like a Republican," said Brisport Wednesday.
Gonzalez called the committee's vote "a victory for all New Yorkers who want a court that protects workers, immigrants, women, and civil liberties."
\u201cI am deeply grateful to my colleagues in the judiciary committee for voting not to move LaSalle\u2019s nomination through committee. This is a huge win for all New Yorkers and is thanks to the work of activists and organizers on the ground who sounded the alarm early on LaSalle.\u201d— Kristen Gonzalez (@Kristen Gonzalez) 1674071939
The New York Working Families Party called on Hochul to nominate a judge "who has a strong record of defending the rights and freedoms of everyday New Yorkers," particularly in light of the far-right supermajority on the U.S. Supreme Court.
\u201c"With a far-right U.S. Supreme Court, and a New York Court of Appeals captured by conservative and corporate interests, New York\u2019s next Chief Judge must be ready to stand up for the rights and dignity of all New Yorkers."\u201d— NY Working Families Party (@NY Working Families Party) 1674072373
The Center for Community Alternatives called on Hochul to nominate one of the judges the group put forward last month as being "outstanding candidates" with experience in civil rights and government: Corey Stoughton of the Legal Aid Society, Yale law professor Abbe Gluck, and Judge Edwina Richardson-Mendelson, the state's deputy chief administrative judge for justice alternatives.
"We thank the Senate for rejecting this nomination," said the group, "and we call on Gov. Hochul, as we have for months, to put forward a nominee for chief judge who will stand up for the rights of marginalized New Yorkers and lead the court New York deserves."
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