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How a Confounding Court Pick in New York Went from Local Story to National Quagmire

Slate 1/18/2023 Alexander Sammon
Gov. Kathy Hochul courted the vote of those outraged by abortion bans. One of her first moves after a close election was to nominate a judge that pro-choice groups oppose. Lev Radin/Sipa USA via Reuters Connect © Provided by Slate Gov. Kathy Hochul courted the vote of those outraged by abortion bans. One of her first moves after a close election was to nominate a judge that pro-choice groups oppose. Lev Radin/Sipa USA via Reuters Connect

Today, the New York senate judiciary committee will speak to Hector LaSalle, governor Kathy Hochul’s nominee for chief judge of the Court of Appeals, which is the highest-ranking position of the state’s highest court.

Normally this would be a routine hearing. The committee cannot confirm LaSalle; the most they can do is advance him to a full state senate vote. The committee could also make the historic decision not to advance LaSalle, ending his candidacy, although that might only provoke Hochul to make the even more historic decision to sue.

Either way, it’s a hearing that will be closely watched by politicos around the country—a strange turn of events for what is usually a minor, bureaucratic half-step with a foregone conclusion. The reason is that this judicial pick has in many ways become the first battle in a consequential, fast-expanding war in Democratic politics. And Hochul has badly mangled the process.

In August, when Judge Janet DiFiore, a conservative who was loyal to disgraced former governor Andrew Cuomo, stepped down mid-ethics scandal, she broke up the 4-3 conservative bloc of judges on New York’s Court of Appeals. That bloc had helped hand Republicans a huge electoral advantage in redistricting in the state. It also arguably delivered control of Congress to the GOP.

The surprise vacancy on the court marked a major windfall for Hochul, a chance to make a defining appointment just days into her new term. Given the weakness of Hochul’s reelection effort, it was also a chance to unify the Democratic Party amidst a chorus of concerns, turn the page on the Cuomo era, and win some good will from voters and the groups that helped push Hochul’s wheezing campaign across the finish line. This is generally how politics works.

Instead, Hochul picked arguably the most conservative judge of the options recommended by the state Commission on Judicial Nomination, one with a particularly noxious record on two of the most important issues in Democratic politics today: abortion and labor. To boot, in the 2014 case People v. Bridgeforth, the judge, LaSalle, signed off on the dismissal of jurors based on skin color, claiming that “dark-colored” was not a “constitutionally cognizable class protected under the Equal Protection Clause.” That decision that was quickly overturned.

Not surprisingly, LaSalle was met with quick condemnation from progressives. But the opposition has been much broader: A number of typically moderate labor unions came out strongly against the pick, as did the NAACP Legal Defense Fund. Many of the 14 state senators who have already said they won’t support LaSalle are far from being Democratic Socialists of America types. And in perhaps the most stunning example of coordinated pushback, mainstream women’s groups across the country have called for LaSalle to be voted down. It’s very uncommon for these groups to publicly defy a sitting Democratic governor, especially one they just helped elect.

In a letter sent on January 8 to the governor and Senate Democrats, and made public thereafter, groups including the National Organization of Women, the National Women’s Law Center, and the National Abortion Federation wrote:

“New York’s highest court should [have] a defender of New Yorkers’ reproductive and gender freedoms, not an ally in their diminution. Given his record, which includes curtailing a New York Attorney General investigation into predatory crisis pregnancy centers — a key weapon of the anti-abortion movement — we have grave concerns for a Court of Appeals headed by Justice LaSalle. We urge the New York Senate to reject his nomination and the Governor to nominate a jurist who will safeguard the rights of New Yorkers.”

At issue is LaSalle’s 2010 decision to subvert a New York Attorney General’s office investigation into pregnancy “crisis centers,” unregulated anti-abortion clinics that deceive women about their health care options and which outnumber abortion providers in the state three-to-one. LaSalle blocked the AG’s office from accessing documents it had subpoenaed the centers to access. Hochul’s office told me that “the Governor has been clear that she believes Judge LaSalle’s record has been mischaracterized.”

In a bitter twist, some of the women’s groups that oppose LaSalle’s confirmation played an outsized role in getting Hochul elected just two months ago, and they include some of her very earliest endorsers. Hochul ran overwhelmingly on abortion rights, and some of those groups with political action arms did major outreach on her behalf. In her first major act after the election—in what will likely be one of the most consequential moves of her tenure—Hochul put up a nominee whose record they found immediately disqualifying.

It’s not the first time she has nominated someone for a consequential post that called into question her commitment to due diligence. In August 2021, she named Brian Benjamin lieutenant governor, her second-in-command. He didn’t even last nine months, resigning after federal prosecutors in Manhattan brought bribery charges against him. The New York Times later said Hochul had “a hasty vetting process.”

But that hasn’t slowed Hochul, who has refused to back down on LaSalle and is pulling the national party into the whirlpool she’s created. Despite the fact that LaSalle’s only path to confirmation would require Republican votes, Hochul has called in favors all over the state to continue to push his candidacy.

She has also pulled in House Democratic leader Hakeem Jeffries, the highest-ranking House Democrat in the country. In one of his very first public appearances since winning that post, on January 14 , Jeffries spoke at a pro-LaSalle rally staged by Hochul, saying “Judge Hector LaSalle is highly qualified to be the chief judge of the state of New York. Period. Full stop.” His fellow speakers were less diplomatic, calling out Democrats who had opposed LaSalle in a way one state senator referred to as “cynical.”

A day later, as part of the same “charm offensive,” Hochul’s team had police throw out an Afro-Latina member of the Sunset Park, Brooklyn, church where Hochul was stumping for LaSalle. Hochul invoked the legacy of Martin Luther King, Jr. at the event, and has continued to do so since.

Democrats have been eager to show their pro-choice conviction after anger over abortion rights delivered them a historical overperformance in the recent midterm election. They’ve also been eager to show their unity at a national level in contrast to Republicans, who have been riven with dysfunction and warring factions.

So why, then, did Jeffries begin last week slamming the GOP’s new “Born Alive” legislation and end it stumping for a judge who pro-choice groups hate? And why have Kathy Hochul and her highest-ranking allies chosen to die on this hill?

In many ways, it’s nonsensical. Hochul started a disastrous proxy war with the same women’s groups who saved her election for seemingly no reason. And Jeffries has just gone to bat for a court pick that could hurt Democrats politically in the future. (After all, if Cuomo hadn’t stacked the New York courts with conservatives, Jeffries would probably be House Speaker right now—not just the Democrats’ leader.) He even suggested circumventing the senate judiciary committee to aid in the process.

But in other ways, this strategy completely comports with the old Cuomo ways of doing things. The disgraced governor often preferred a battle with his own party’s left flank than with Republicans, a lesson Hochul seems to have learned. He would hold grudges and threaten retaliation against those who didn’t go along; Hochul, in her own approximation, has reportedly told Democrats she’ll “remember” who’s with her. Jeffries, an old ally of Cuomo’s, picked up his penchant for sparring with progressives, too. And they seem to have found a uniquely disastrous moment to dig up the hatchet.

If LaSalle makes it past Wednesday—New York Focus has reported that it’s unlikely—the chaos will only grow, as Hochul will start horsetrading with Republicans for votes. Even if he doesn’t, the fallout will be lasting, and huge. As one organizer with a major national pro-choice group put it to me: “How can we possibly trust Hochul after this?”

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