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Confirmation Hearing Nears for Conservative Nominee to NY's High Court. [1]
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Date: 2023-01-17
Why This Matters: New York’s Conservative High Court
It may surprise folks who aren't familiar with the New York judiciary, but the state’s high court has been controlled in recent years by a bloc of 4 conservative judges (of 7 judges in total). This conservative majority, led by former Chief Judge Janet DiFiore issued a parade of closely divided regressive decisions. Among other rulings, it struck down landmark tenant protections, made it more difficult to hold police accountable for misconduct, and erected barriers for employees injured on the job to recover from their employers. Most famously, it stripped control of post-2020-census redistricting from an independent redistricting commission and the state legislature, and gave it to a single partisan Republican judge.
Last summer, DiFiore abruptly resigned, leaving the ideological leanings of the Court of Appeals in the balance. The stakes of the confirmation battle for her successor could hardly be higher.
The recent conservative ascendance at the Court of Appeals could not have come at a worse time. Culminating in 2017, reactionaries have gained complete control of the Supreme Court of the United States and are using that body to systematically dismantle federal constitutional rights protecting the vulnerable. New York, like many states, has state constitutional analogs to many federal rights, and New York had a strong tradition of interpreting these rights more broadly than federal courts interpreted federal analogs. Unfortunately, the recently installed conservative majority on the Court of Appeals abandoned this tradition and has continuously ruled that state protections are coextensive with federal ones, which is a big problem as those federal rights are rapidly eroded.
Given the amount of time remaining on the 14-year terms of the 3 conservative judges already on the Court of Appeals, confirming a fourth conservative judge would effectively consign New Yorkers to the whims of Sam Alito and Clarence Thomas through at least 2030.
Gov. Hochul nominated LaSalle, the presiding justice in one of the state's intermediate appellate courts, as DiFiore's replacement and Democrats from across the ideological spectrum were apoplectic.
LaSalle's Conservative Judicial Record and his Supporters’ Failed Efforts to Rehabilitate Him
LaSalle has a lengthy judicial record siding with the powerful and against the vulnerable. Even before Hochul nominated him, a broad coalition of progressive organizations expressed deep opposition to his potential appointment, citing rulings hostile to reproductive health, labor, and due process. Hochul nominated him anyways. As previewed, Democrats from across the party's ideological spectrum voiced opposition. Unsurprisingly, the state's GOP appears poised to support him.
Since his nomination, Hochul and LaSalle's allies have pushed back on the characterization of LaSalle as conservative in a variety of ways. Each are unconvincing.
Initially, the Hochul/LaSalle argued that his opponents were “cherry-picking” cases and it was unfair to judge LaSalle on only 3 of his roughly 5000 judicial opinions. Even on its face, this argument is concerning. Why should we ignore any bad rulings, let alone 3? And this is especially the case where LaSalle’s proponents failed to cite to any case where, when faced with a difficult or open question of law, he sided with the vulnerable over the powerful. In any event, reporters unearthed that, in recent years LaSalle had heard 8 cases that (a) reached the Court of Appeals and (b) divided that Court on obvious ideological fault lines. The Court’s conservatives sided with LaSalle on 7 of the cases, over impassioned dissents from the liberal judges. What would we have said if Biden nominated a judge for the Supreme Court to replace Stephen Breyer who, as an intermediate appellate judge, consistently joined opinions affirmed by Clarence Thomas and Samuel Alito over dissents from Sonia Sotomayor and Elena Kagan?
In response to the “it’s just three cases” argument, LaSalle’s opponents (who had clearly done a more thorough vetting of LaSalle’s judicial record than Hochul’s team), quickly thrust additional horrific decisions into the public discourse. In one, LaSalle joined an opinion holding that the Constitution did not protect against discrimination in jury selection based on skin color, as opposed to race (yes, this is real). He also joined a horrific ruling where he ruled that a victim of a horrific domestic violence attack had no recourse against the police when police repeatedly refused to enforce a restraining order despite observing the woman’s abusive ex-boyfriend violating it. Instead of arresting him, they told the victim she should move and she would be arrested if she called the police again. The next time her abusive ex-boyfriend showed up, the victim did not call the police because she feared arrest, and her ex-boyfriend threw her out of a third floor window, causing gruesome injuries. LaSalle’s panel held that the police conduct in this case did not establish a duty to protect her. The case was appealed to the Court of Appeals, where the conservative majority affirmed LaSalle’s panel, while the two liberals on the Court both wrote impassioned dissents explaining why the decision created a legal landscape that enabled domestic abusers.
Eventually, Hochul and LaSalle’s allies decided to contest the interpretation of some of the opinions LaSalle joined, accusing LaSalle’s opponents of misrepresenting them and “railroading” LaSalle. They demanded a confirmation hearing where he could articulate his judicial philosophy. The most notable example of this argument is probably Errol Louis’s piece in NYMag. These defenses of LaSalle, however, are fundamentally dishonest. Initially, none of LaSalle’s opponents were arguing that he should be denied a hearing if he and Hochul persisted in his nomination. Rather, they were arguing that LaSalle’s judicial opinions were a far better barometer for his likely judicial ideology than nonbinding vague pablum at a committee hearing. Insisting on a hearing as if LaSalle’s opponents were going to deny him one was a transparent strawman.
As for the merits of the defense, commentators like Louis completely missed the point. With respect to Cablevision, the supposedly anti-labor case, Louis argued that the ruling (which denied a motion to dismiss to a defamation lawsuit brought against labor leaders in the midst of a labor dispute) was not anti-labor at all because LaSalle’s panel signaled that the labor leaders would likely win the case after the next phase of the litigation. But, even if labor leaders would likely not face liability after discovery, subjecting them to costly and lengthy discovery, rather than dismissing harassment lawsuits at their outset, would be a huge problem for organized labor. There’s a reason organized labor was apoplectic at LaSalle’s nomination, and it’s not because they misunderstand their own interests or Cablevision. It was not labor and LaSalle’s opponents who were misrepresenting Cablevision, but LaSalle’s proponents.
It’s a similar story for Evergreen, a case where LaSalle’s panel curtailed a state investigation into a so-called “crisis pregnancy center.” “Crisis pregnancy centers” pose as medical providers and dupe pregnant women into not seeking or obtaining abortions, often by misleading them about their reproductive health options. LaSalle’s proponents, like Louis, have argued that the Evergreen decision had nothing to do with abortion, and was really just about the First Amendment protections against an overbroad subpoena. But, this is hardly reassuring when this is the exact same logic employed by conservatives in defense of the Supreme Court’s regressive First Amendment jurisprudence. Reactionaries have repurposed the Amendment to promote conservative interests, often by elevating the First Amendment concerns of conservatives engaging in problematic conduct over the rights and interests of those harmed by the conduct at issue. So, the rights of a high school football coach to pray take precedence over the rights of his students to be free from being subjected to his prayer. And the rights of bigots to deny services to LGBTQ folks are more important than the rights of those LGBTQ folks to be free from discrimination in public accommodations. What is perhaps most notable about the Evergreen decision was its omission of protecting access to reproductive health options as a government interest implicated in the investigation. This omission is characteristic of recent Supreme Court First Amendment jurisprudence. Indeed, just a year after Evergreen, the Supreme Court heard its own crisis pregnancy center case and, over a dissent joined by all four liberals on the Court, it cloaked them with an immunity from reasonable regulations. Either LaSalle’s defenders are misleading the public about Evergreen, or (I think more likely), they truly believe that Evergreen was not about abortion. But, that in of itself is deeply concerning because it adopts the conservative framing of the First Amendment in contexts were supposed First Amendment rights conflict with disfavored rights. A broad collection of reproductive health advocacy groups has condemned LaSalle’s nomination, and, as with Cablevision and labor, surely these groups understand their own interests.
LaSalle’s proponents have, to date, not addressed these responses to their attempt at substantive pushback over Cablevision and Evergreen. Instead, they just repeat the allegation that the cases are being misconstrued in bad faith, relying on the same already-publicly-refuted arguments.
Perhaps recognizing their inability to push back in a meaningful manner on opponents’ characterization of LaSalle’s record, his proponents have made increasingly bizarre arguments to try to discount it. They argued that he should be judged not on his opinions, but on his answers in his judiciary committee hearing. This argument was widely ridiculed. We all lived through the past few years and have seen recent judicial confirmation hearings. Conservative judges just lie or mislead the public about their judicial philosophy in these sorts of hearings. Why would we trust any self-serving comments at a judiciary hearing when we could judge him on his actual judicial record?
Several proponents have argued that LaSalle should not be judged on the opinions he signed, as opposed to those he wrote. This argument was widely and rightly ridiculed (partly because LaSalle virtually never writes opinions — fewer than once per year since his appointment to the intermediate court of appeals). Do we not know where Amy Coney Barrett stands on abortion rights because she signed Dobbs rather than wrote separately? Judges who sign their name to an opinion are saying they agree with it — if LaSalle disagreed with his colleagues, he should have have said so. Now he is being held to account for the decisions he endorsed. The most ludicrous form of this argument was put forward by a group of retired appellate judges, who argued that it was inappropriate to draw any conclusions at all from written intermediate appellate decisions because they were often written by staff attorneys and were misleading. This was just telling on themselves. It also undercut one of the few decent affirmative arguments for LaSalle’s confirmation, his experience. If being an intermediate appellate judge does not require reaching reasoned conclusions, then why is that experience relevant for an appointment to the Court of Appeals?
LaSalle’s proponents have also released several letters from former colleagues and practitioners. These were mostly ignored because the signatories either (a) had obvious reasons to ingratiate themselves with LaSalle (evoking memories of Neal Katyal’s widely-ridiculed defense of Neil Gorsuch), or (b) had pretty obvious conservative leanings. For example, a letter supporting LaSalle signed by a bunch of partners of law firms that union bust and represent giant corporations only serves to confirm, not undermine, the inference that LaSalle is a conservative judge.
Finally, there has been a concerted effort by LaSalle’s allies to portray the opposition to LaSalle as anti-Latino, led by a group calling itself Latinos for LaSalle. This effort has largely failed to gain any traction, perhaps because there is intense opposition to LaSalle’s appointment in the Latino community. Indeed, of the Latinos in the state senate, far more have publicly opposed LaSalle than have expressed support. Also, Democrats across the country and across the party’s ideological spectrum have grown wise to conservative efforts to blunt criticism of regressive judicial nominees (and other politicians) through shallow appeals to identity politics. We know that a Black judge can be deeply hostile to the interests of the Black community (Clarence Thomas). Or a female judge (Amy Coney Barrett). Many folks looked beyond LaSalle’s personal background and to his record, only to find someone likely to be hostile to the very community he purportedly represents.
Kathy Hochul Keeps Digging
Based on concerns over his conservative judicial record and the conservative trend of the state’s high court, a majority of Democratic senators have expressed serious reservations about LaSalle’s nomination. At least 14 senators (out of 42 Democrats) have stated that they will vote no on his confirmation (compared to 3 Democratic who are publicly supportive of LaSalle), and at least as many have publicly expressed concern over LaSalle’s conservative judicial record. Several of these senators are perceived as moderate/centrist, making it clear that opposition to LaSalle spans the party’s ideological spectrum. Accordingly, leaders of the senate Democratic caucus have made it abundantly clear to Gov. Hochul over the past few weeks that LaSalle likely does not have the votes to advance out of the judiciary committee or be confirmed by the full senate if his nomination reaches that stage.
Rather than read the room, Gov. Hochul continues doubling down. Faced with Democratic opposition and skepticism, rather than going back to the drawing board and finding a judicial nominee broadly acceptable to senate Democrats, Hochul decided to solicit GOP support for LaSalle. For those unfamiliar with the state’s GOP, it is every bit as reactionary as the GOP is across the rest of the country. That the GOP is even entertaining the idea of saving Hochul from abject humiliation (this would be the first Court of Appeals nomination ever rejected by the senate) in itself says a lot about how conservative LaSalle’s record has been as an appellate judge.
Hochul’s efforts at drumming up support for LaSalle culminated last weekend in two utterly bizarre appearances. On Saturday, Hochul organized a rally in the Bronx alongside several members of NY’s congressional delegation to call for LaSalle’s confirmation. Then, on Sunday at a church in Brooklyn, she delivered an offensive and bizarre speech invoking Martin Luther King Jr. and arguing that because he taught that it was wrong to judge people on the color of their skin, it was wrong to judge LaSalle on his judicial opinions (really! that was her argument! I’m not making this up!). The irony of the speech was immense, not least because of the intense opposition to LaSalle from organized labor and civil rights activists. Indeed, earlier this weekend, the NAACP Legal Defense Fund issued a statement publicly opposing LaSalle, specifically citing the case where LaSalle ruled that the constitution did not prohibit discrimination in jury selection on the basis of skin color. Making matters worse, when an Afro-Latina congregant rose to dissent to Hochul’s comments, she was forcibly removed from the church by police. It is hard to imagine a set of circumstances more contrary to Martin Luther King Jr.’s legacy.
So What Next?
Hochul appears unwilling to listen to reason and withdraw LaSalle’s nomination, so folks who do not want a conservative Court of Appeals must defeat his nomination in the senate. LaSalle’s senate judiciary committee hearing is tomorrow, and a defeat there should end this ordeal. Stunningly, Hochul has been arguing publicly that even if the judiciary committee votes him down, she will persist in the nomination and that LaSalle is entitled to a vote from the full senate chamber (predictably, senate Democratic leadership disagrees), so it’s not entirely clear that this process will be over if/when the judiciary committee rejects his nomination.
So, what can be done? For now, please call/email/text/etc. New York’s Democratic senators to express your opposition to LaSalle’s confirmation. Given the attention this issue has received, it is unlikely there are any truly undecided Democratic voters on the judiciary committee, but Hochul’s team has been pressuring lawmakers to try to shift some votes back to LaSalle, so the more the senators on the judiciary committee hear from constituents opposed to LaSalle, the better. As for Democrats not on the judiciary committee, there is a chance that LaSalle gets a floor vote regardless of the outcome in the committee, so it is important that they hear from you. An organization called The Court NY Deserves has been leading the fight against a conservative capture of the Court of Appeals, and it has a great tool to help folks contact their state senators. Please use it.
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[1] Url:
https://www.dailykos.com/stories/2023/1/17/2147690/-Confirmation-Hearing-Nears-for-Conservative-Nominee-to-NY-s-High-Court
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