Jurisprudence

Kathy Hochul’s Nominee for New York’s Top Judge Is an Absolute Disaster for Democrats

The governor had a chance to reshape the state’s highest court. She blew it.

Hochul gesturing for the crowd to sit down.
Gov. Kathy Hochul speaks at a rally on Nov. 6. Stephanie Keith/Getty Images

When Chief Judge Janet DiFiore abruptly resigned from New York’s highest court in July, Democratic Gov. Kathy Hochul got the opportunity to reshape the bench, and to finally end the reign of the conservative majority. Hochul declared that she would seek a nominee who would transform the court into a progressive counterweight to the far-right U.S. Supreme Court.

On Thursday, however, she did the exact opposite, selecting Judge Hector LaSalle to serve as New York’s top judge. LaSalle is a former prosecutor with a conservative record against abortion, unions, and criminal defendants. If confirmed by the state Senate, he would entrench a reactionary majority that would fight tooth and nail against the priorities of New York progressives.

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Right now, the state’s highest court—which is called the New York Court of Appeals—is sharply divided. DiFiore, the former chief judge, led a bloc of four conservatives that gained notoriety after invalidating Democrats’ congressional map and replacing it with a map favorable to Republicans. (This decision helped Republicans clinch their narrow majority in the House of Representatives.) When DiFiore stepped down due to an ethics scandal, she left the court split between three conservatives, two liberals, and one moderate. So the new chief judge could have either restored the court’s right-wing majority, sat at its ideological center, or led its left flank.

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The Commission on Judicial Nomination gave Hochul seven options across the ideological spectrum, including several liberals. Yet she picked LaSalle, touting the fact that he’d be the first Latino chief judge while ignoring his alarming record. If confirmed, he is all but guaranteed to shore up the right-wing majority. His record as an intermediate appeals court judge demonstrates a deep hostility to the very values that Hochul claimed she wanted to uphold with this appointment. To give just a few examples:

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• A decade ago, the New York attorney general launched an investigation into an anti-abortion “crisis pregnancy center” accused of practicing medicine without a license. In an extraordinary decision, LaSalle voted to shield the fake clinic from the probe. The ruling barred state investigators from reviewing “advertisements and promotional literature, brochures and pamphlets that the [center] provided or disseminated to the public” on First Amendment grounds—even though these documents were critical to determining whether the clinic falsely promoted its services as genuine medical care.

• To prevent corporations from harassing unions, New York law bars management from suing unions or union leaders in their official capacity. In 2015, however, LaSalle joined a shocking opinion that carved a massive loophole into this law, allowing Cablevision to sue union leaders for criticizing the company’s management response to Hurricane Sandy. The opinion rendered labor protections toothless, giving corporations an easy workaround until the Court of Appeals shut it down.

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• In a 2014 ruling, LaSalle voted to prohibit a criminal defendant from appealing his conviction. The defendant claimed he was the victim of an illegal search, yet prosecutors persuaded him to sign an ambiguous, misleading waiver of his right to appeal. A trial court judge failed to tell the defendant the actual impact of this waiver. LaSalle thought that was fine—but the Court of Appeals later repudiated the decision, holding that a waiver of appeal can’t mischaracterize what rights are waived.

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What’s remarkable about this string of decisions is that it aligns perfectly with SCOTUS’ current conservative agenda. The Supreme Court justices have recently shielded crisis pregnancy centers from legal scrutiny and, of course, overturned the constitutional right to abortion. In a string of 6–3 rulings, the majority has radically diminished the rights of criminal defendants using procedural tricks of the sort that LaSalle greenlighted. And at this moment, SCOTUS is on the brink of subjecting unions to ruinous fines under state law when they go on strike. New Yorkers can expect a Chief Judge LaSalle to vote in lockstep with SCOTUS’ agenda. That’s why a large group of left-leaning law professors in the state urged Hochul not to pick him for the spot. Progressive groups have already begun whipping opposition to the nominee.

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Hochul’s nomination of LaSalle will have profound political implications, too, reaching beyond the boundaries of the Empire State.

New York Democrats are fractious and weakened after a disastrous 2022 election cycle; there’s widespread belief that Hochul’s insipid messaging and sometimes nonexistent campaign sunk many fellow Democrats down the ballot. That lassitude has created a real shortage of goodwill in Albany, and few are going to feel that they owe Hochul a favor in getting her nominee across the finish line.

That’s important, because despite their pitiful midterms performance, Democrats managed to hang on to their supermajority in the state Senate with a large progressive bloc. Many members of that supermajority have been very vocal about their opposition to the 4–3 conservative majority that Gov. Andrew Cuomo created on the Court of Appeals, and the reactionary legacy it has already created on workers’ rights issues, criminal justice reform, and redistricting.

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In late August, 20 state senators sent a letter to both the state’s Commission on Judicial Nomination and Hochul’s office urging them to pick a justice unlike DiFiore, the chief judge who resigned. “We want to make sure we don’t want to get a repeat of a tenure that has sullied the reputation of the state’s highest court,” said Senate deputy leader and letter signatory Michael Gianaris in an interview after the letter’s publication. But LaSalle’s track record puts him squarely in line with DiFiore, a former registered Republican.

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Also among the signatories of that letter was Sen. Brad Hoylman, who chairs the New York Senate Judiciary Committee. Hoylman has said he plans to give LaSalle a “fair hearing.” But the opposition to LaSalle has already been unprecedentedly swift and vocal, and numerous Democratic senators have already pledged to vote no.

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While the LaSalle nomination will create a mess for state Democrats, it is also potentially disastrous for national Democrats. It was the Court of Appeals’ 4–3 conservative majority, led by DiFiore, that created the statewide redistricting debacle, after the court threw out the maps drawn by the legislature. It then appointed an out-of-state special master to redraw lines more favorable to conservatives. With those new districts in place, Republicans flipped four congressional seats from blue to red, delivering the GOP a House majority in the process. One of those flips was by Long Island Republican George Santos, who has recently been revealed as a decorated fabulist who isn’t Jewish, didn’t run an animal rights nonprofit, or work at or graduate from the various institutions on his résumé.

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A liberal majority in the Court of Appeals could have allowed the state legislature to redraw congressional maps, removing the GOP bias imposed by the special master. And simply returning redistricting responsibility to state lawmakers could conceivably change control of the House in 2024. If LaSalle is confirmed, Democrats can kiss that dream goodbye.

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It’s yet another embarrassment for the New York Democratic party, which continues to assure the public that it’s got everything under control, despite all evidence to the contrary. Those state failings are very much national concerns: The top-ranking Democrats in the House and Senate, Hakeem Jeffries and Chuck Schumer, are both New Yorkers, and LaSalle’s elevation reflects poorly on them, too.

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Hochul, in desperate need of some unifying gesture to prove that she can actually helm the New York Democratic party, and run a state where Democratic voters outnumber Republicans 2 to 1, may find herself in a brutal, losing battle to maintain the conservative majority on the state’s top court. For many New Yorkers who hoped she would turn the page on the scandal-plagued Cuomo era, the decision is more confounding still.

If Hochul gets her wish and Senate Democrats accede, the impact will be felt not in years but in decades. LaSalle will be locked into a 14-year term. Judges Madeline Singas and Anthony Cannataro, both members of the conservative bloc, are only one year into their tenures. The conservative makeup of the chamber would likely be set until Michael Garcia’s term expires in February 2030. Seven years is a long time to wait for the possibility of a left-leaning majority that could be clinched right now.

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