Kathy Hochul’s disastrous nomination for New York’s top judgeship, explained

New York Gov. Kathy Hochul must have known she was picking a fight with her fellow Democrats when she nominated Hector LaSalle, a mid-level appeals court judge, to be her state’s most powerful jurist.

And now, she has one.

Last July, Chief Judge Janet DiFiore of New York’s Court of Appeals (in New York, the highest court is known as the “Court of Appeals”) unexpectedly announced that she would step down at the end of August. While in office, DiFiore did not just hold the formal position of chief judge, she also led a narrow, four-judge majority that is widely perceived as more conservative than the Democratic majority that controls the state legislature.

Her resignation split the six remaining Court of Appeals judges between a three-judge conservative faction and three more liberal judges. So Hochul’s pick to replace DiFiore is expected to wield the balance of power between these two factions.

Before Hochul picked LaSalle, multiple left-leaning groups urged her to choose someone else — fearing that LaSalle would most likely restore the same power balance that existed under DiFiore. Their substantive case against LaSalle is relatively thin, at least compared to the bulging opposition research file that might be produced on a US Supreme Court nominee. Mid-level judges in state courts rarely hear the kind of blockbuster political cases that fuel Supreme Court confirmation fights.

But the case against LaSalle does involve two extraordinarily contentious issues: criminal justice and the rights of unions. Perhaps most significantly, it includes an opinion that LaSalle joined which could allow employers to target union leaders personally with lawsuits. So it was entirely predictable that organized labor, an important Democratic constituency, would come out in force against LaSalle.

Hochul also announced this nomination after Democrats received several painful reminders of the powerful policymaking role played by high-level appellate judges. Roe v. Wade is dead, the Voting Rights Act is barely breathing, and New York’s own gun laws were recently gutted by a US Supreme Court that Republicans spent decades capturing.

Meanwhile, back at home, the New York Court of Appeals struck down gerrymandered congressional maps that Democrats hoped would counterbalance Republican gerrymanders in other states — and it did so in a 4-3 decision by Chief Judge DiFiore. That may have cost the party control of the US House for the next two years.

And so numerous New York Democrats appear to be in no mood for a chief judge nominee who may not, as one state senator put it, use their office to protect New Yorkers “from the dangerous leanings of the US Supreme Court.”

LaSalle, who is Latino, has received support from some prominent Latino Democrats, but his nomination otherwise landed with a thud in the state senate, which must vote to confirm Hochul’s nominee. At least a dozen state senate Democrats publicly oppose LaSalle, including the chamber’s deputy majority leader and some who identify as Latino.

Hans Pennink/AP

Democrats currently control 42 seats in the 63-seat New York Senate, so these defections mean LaSalle cannot be confirmed without Republican votes.

It’s unclear why Hochul chose a judge whose record includes such an obvious red flag for labor leaders, but Hochul’s choices were somewhat limited. By law, Hochul was required to pick a chief judge nominee from a list of seven ideologically diverse candidates chosen by the state’s Commission on Judicial Nomination. LaSalle was the only Latino on that list, and local reporters have speculated that Hochul wanted to appoint the state’s first Latino chief judge.

And so, Hochul has managed to pick a judge who divides her party, who places powerful Latinos in New York at odds with labor, and whose nomination appears likely to fail in a state Senate where Democrats have a supermajority.

LaSalle’s story, then, is perhaps most interesting not for what it says about New York, but for what it says about the Democratic Party’s increasing sensitivity about judges. Having been burned so many times by Republican appointees on federal courts, Democrats might no longer be willing to roll the dice on judges who are technocratically proficient but ideologically uncertain.

The case against LaSalle

A few days before Hochul announced the LaSalle nomination, a group of 46 law professors wrote to her laying out the substantive case against the eventual nominee. Among other things, they argued that LaSalle, a former prosecutor, would be even more conservative than the DiFiore-led Court of Appeals on criminal justice issues. They also pointed to decisions touching on abortion and the right to unionize, where LaSalle took conservative positions.

Realistically, these decisions suggest that LaSalle could be a center-right judge in the vein of former Justice Anthony Kennedy, or perhaps a moderate Democrat in the vein of Attorney General (and failed Supreme Court nominee) Merrick Garland. There’s no reason to believe that LaSalle would be a GOP partisan like Justice Samuel Alito or a burn-it-all-down reactionary like Justice Neil Gorsuch.

But New York is also a blue state with a Democratic supermajority in the state Senate. So even if he might be an acceptable compromise nominee in a more conservative state, there is no need for Democrats to trim their sails in New York.

LaSalle on unions

One of LaSalle’s most consequential cases as a lower appellate judge is Cablevision v. Communications Workers of America (2015), which expanded employers’ power to sue union leaders. Because this decision potentially allows major employers to file suits seeking to harass the individual leaders of a union, it’s hardly surprising that so many major New York unions decided to go nuclear against LaSalle almost as soon as his nomination was announced.

A New York state law permits leaders of an “unincorporated association” to be sued only if the plaintiff could bring a lawsuit “against all the associates” of that organization. In Martin v. Curran (1951), the NY Court of Appeals held that this statute prohibits suits against a union’s officers unless the union’s members authorized or ratified the officers’ behavior.

Justice LaSalle, however, joined an opinion in Cablevision which seemed to revise the law in defiance of Martin and the state statute. Under Cablevision, a company that wishes to target union officials may get around Martin by specifying that it is suing those officials “in their individual capacities,” rather than in their “representative capacities” as agents of their union membership.

As a practical matter, that could render Martin largely toothless, as any company that wants to sue union leaders can potentially get around Martin simply by saying that it is suing those leaders as individuals.

And, in any event, it is unsurprising that unions would react with alarm toward any judicial nominee that would open union officials up to liability.

LaSalle on criminal justice

The law professors’ primary evidence that LaSalle would be more conservative than DiFiore on criminal justice issues is People v. Corbin, a 2014 decision joined by LaSalle that would have drastically limited the right of criminal defendants to understand which rights they are giving up when they plead guilty to a crime.

As a general rule, criminal defendants may waive their own legal rights — including the right to stand trial and the right to appeal a conviction or sentence — but these waivers must be “voluntary, knowing and intelligent.” As the NY Court of Appeals held in People v. Bradshaw (2013), a defendant’s decision to waive their right to appeal “meets this standard when a defendant has ‘a full appreciation of the consequences’” of that waiver.

In Corbin, LaSalle joined an opinion holding that a criminal defendant validly waived his right to challenge his conviction on appeal, on the grounds that police unconstitutionally searched his vehicle and found a handgun. When the defendant entered a guilty plea, the trial judge informed him that he was giving up his right to appeal “any issue that may arise from this case except certain constitutional issues.” The trial judge did not identify which “constitutional issues” could still be appealed.

As Justice Ruth Balkin noted in dissent, this ambiguous waiver could not possibly have given the defendant “a full appreciation of the consequences” of his plea. As Balkin noted, “the only contested issue in this case was the constitutional issue pertaining to the warrantless search that resulted in the seizure of the gun,” so the defendant quite reasonably could have believed that, when the trial judge said he could still appeal “certain constitutional issues,” that the only constitutional issue present in the case was appealable.

Notably, the Court of Appeals repudiated Corbin’s reasoning several years later in an opinion by Chief Judge DiFiore.

Additionally, a memorandum from more than 100 left-leaning groups claims that “nearly every dissent [LaSalle] has personally written has objected to a decision vacating or reversing a conviction.”

LaSalle on abortion

The third decision mentioned in the law professors’ letter, Evergreen Association v. Schneiderman (2017), is easier to defend than LaSalle’s votes in Cablevision and Corbin — although the Evergreen decision is so thinly reasoned that it is difficult to assess whether it was correctly decided.

That case involved the New York attorney general’s investigation into an organization that operated crisis pregnancy centers, anti-abortion advocacy centers that sometimes masquerade as full-service reproductive health clinics, and that try to convince patients not to have an abortion.

Under the First Amendment, crisis pregnancy centers have an absolute right to engage in anti-abortion advocacy. But, while the Constitution places some limits on states’ ability to sanction deceptive speech, the First Amendment does not permit crisis pregnancy centers to defraud patients seeking an abortion. Nor does it allow anti-abortion advocates to practice medicine without a license.

The attorney general’s office subpoenaed these centers, seeking a wide range of documents as part of an investigation into whether the centers “may be engaged in the unauthorized practice of medicine.” The centers, meanwhile, challenged the subpoena, claiming that it had a “chilling effect” on their First Amendment-protected advocacy.

Ultimately, LaSalle joined an opinion that limited the scope of this subpoena but did not quash it in its entirety.

There is some case law supporting this outcome. In a 1988 decision, a lower appellate court in New York held that a party resisting a subpoena on First Amendment grounds enjoys very strong protection against being investigated if they can make “at least some showing that production of the information sought would impair their 1st Amendment rights” — although this lower court’s decision is not binding on LaSalle’s court.

If we assume that this 1988 decision — which Evergreen embraced — was correctly decided, then the opinion that LaSalle joined is, at least, plausible. Though that decision seemed to concede that the crisis pregnancy centers had “not demonstrated any way in which the First Amendment right of its staff members to freedom of association would be threatened if required to comply with the subpoena,” the centers did claim that the subpoenas “will have a chilling effect on its associations with its employees and potential clients.”

That could be enough under a rule which only requires the target of an investigation to make “at least some showing” that their First Amendment rights are endangered.

In any event, Evergreen is not a model of judicial reasoning. LaSalle’s court should have provided a more robust explanation of why it relied on a lower court decision that was not binding and that gave organizations subject to investigation an extraordinarily broad ability to resist subpoenas. The court also should have spent more than a few sentences explaining why it believed that these crisis pregnancy centers met their obligations under the rule announced in this lower court decision.

But, because the Evergreen decision did not do this work, it is hard to assess whether it applied the law correctly to the facts of this particular case.

So what happens to LaSalle’s nomination now?

Given the widespread opposition to LaSalle’s nomination among Democrats, he is unlikely to be confirmed. Right now, enough state Senate Democrats have come out against LaSalle to doom his nomination unless a critical mass of Republicans agrees to support LaSalle — and that’s assuming that his nomination receives a vote at all.

State Sen. Brad Hoylman (D), the chair of the Senate’s judiciary committee, said in late December that he opposes bringing LaSalle’s nomination to the floor if Republican votes are needed to confirm him. He added that LaSalle faces a “very steep climb, based on the number of senators who have expressed public opposition and that doesn’t even count senators who have privately suggested that they would vote no.”

That said, a group called Latinos for LaSalle, which includes some prominent Democrats, has rallied behind the embattled nominee. This group includes Service Employees International Union official Dennis Rivera, former New York City Council Speaker Melissa Mark-Viverito, and Latino Victory Fund chair Luis Miranda.

Its messaging is not subtle. In a recent statement, Latinos for LaSalle accuse LaSalle’s opponents of applying a “double standard” because “more than 38 white nominees for this same position have been heard and confirmed.”

Meanwhile, the state Senate’s Republican leader, Rob Ortt, appears to be embracing the chaos.

If nothing else, in other words, Hochul has succeeded in dividing Democrats and potentially in uniting Republicans around a nominee that enrages many key Democratic interest groups. And she did so with more-than-adequate warning that LaSalle’s nomination would garner considerable opposition from her fellow Democrats.

Hochul nominated a relatively conservative judge, moreover, at a time when Democrats across the country are hyperaware of what can happen to them and their policies if the courts move too far to the right. As Democratic state Sen. Gustavo Rivera said in his statement opposing LaSalle, “the US Supreme Court has already demonstrated that they will actively erode what we have fought so hard to secure.”

Accordingly, said Rivera, “this is not the time to place a person at the head of our appeals court who could weaken the ability of our state to defend us from these national attacks.”

Indeed, as recently as last November, Hochul appeared to sing from the same hymnal. In a November op-ed, Hochul argued that “we need our courts to defend against this Supreme Court’s rapid retreat from precedent and continue our march toward progress.”

But, when given a chance to name the most powerful judge in her state, Hochul appears to have picked someone that her fellow Democrats will not tolerate.