With Chief Judge Janet DiFiore’s August resignation from the New York Court of Appeals, Gov. Kathy Hochul had an opportunity to align the state’s highest court with the values of a majority of New Yorkers. She could have rebalanced the court to better reflect a range of professional experience across the legal profession. Instead, Hochul nominated Justice Hector LaSalle, a judge more in line with the conservative U.S. Supreme Court than with the people of this solidly blue state who value individual liberties and legal protections for all residents. As public interest law students in New York, we hope the state Senate rejects this conservative nominee in favor of a judge with a record of defending the rights of the powerless rather than protecting the privileges of the powerful.
As legal advocacy groups, unions, reproductive justice organizations, and others have pointed out, LaSalle has authored or joined a number of alarming decisions during his time serving on the Second Judicial Department of the Appellate Division, the intermediate appellate court covering ten downstate counties, including Brooklyn and Queens. His decisions include the Cablevision ruling, which opened up organizers to liability for protected union activities, and the Evergreen ruling, which hamstrung the state attorney general’s investigation into anti-abortion crisis pregnancy centers—organizations that mislead pregnant people about their options and act as fronts for forced birth advocacy. As Hochul acknowledged during her recent campaign, abortion and labor rights are issues that clear majorities of New Yorkers strongly support, and LaSalle cannot be trusted to act in our interest in these cases.
Beyond serious issues with LaSalle’s opinions, his nomination also perpetuates a serious lack of professional diversity on New York’s highest court. Prosecutors and corporate attorneys are severely overrepresented among judges generally, and the Court of Appeals is no exception. Half of the current members of the Court of Appeals are former prosecutors, despite prosecutors making up only about 14 percent of attorneys in the U.S. As both a former prosecutor and corporate attorney, LaSalle would further this imbalance.
Stacking the courts with prosecutors and corporate lawyers pushes students away from careers in public defense, legal aid, and legal services for the indigent. High salaries and a clear path to the bench for prosecutors and corporate lawyers already make these careers attractive. As students, we see the prestige afforded to corporate lawyers and prosecutors and the heightened scrutiny that public interest lawyers receive in judicial confirmations; they are often accused of bias merely for doing constitutionally required jobs. We are constantly thinking about how we will be able to pay student loans and afford rising costs of living in public interest careers. Routinely, we see our peers switch away from public interest careers and 71 percent make the switch because of student debt. Despite the urgent need for public interest lawyers, superior prospects push students into careers where they will learn to advocate for the interests of the wealthy and powerful, no matter how abhorrent those interests are. After dissuading students from public interest careers, the judicial bias for prosecutors and corporate lawyers then fast-tracks these acquired viewpoints to the bench. This lack of professional diversity deprives the court of crucial perspectives from fields that expose lawyers to how the law impacts ordinary people.
Including these perspectives on the court is more than a simple box-checking exercise; their exclusion has major real-world impacts. Empirically, studies have shown that judges who are former prosecutors and corporate attorneys impose harsher criminal sentences and side with employers in discrimination suits more often than other judges. One study found that trials before former prosecutors were more likely to end in conviction and that, on average, former prosecutors sentenced convicted defendants to sixteen more months in prison than former public defenders did. In another study of grants of motions for summary judgment, which are purely matters of law, prosecutors were 56 percent less likely to find for workers over employers in employment disputes than non-prosecutors were.
Anecdotally, judges themselves have acknowledged the impact that judges of professionally diverse backgrounds have on their deliberations; U.S. Supreme Court Justice William Brennan wrote that Justice Thurgood Marshall’s experience as a civil rights attorney gave him “first-hand knowledge of the law’s failure to fulfill its promised protections” and that this perspective influenced Brennan’s own thinking.
Hochul’s nominations have been conservative even when compared to mainstream Democrats. In his nominations, President Joe Biden has emphasized both racial and gender diversity as well as professional diversity: Over half of his nominees thus far have been attorneys working across public interest areas such as public defense, civil rights, consumer protection, labor, and more. For example, Biden’s New York federal district court nominees have included Natasha Merle from the NAACP Legal Defense Fund, Jessica Clarke from the New York Attorney General’s civil rights bureau, Nina Morrison from the Innocence Project, and Dale Ho from the ACLU. Rather than working towards similar progress in New York State, the governor has simply elevated another former prosecutor.
As law students pursuing careers representing individuals against the powerful, we want to see a chief judge who has a track record of protecting ordinary people’s rights and decides cases without corporate and prosecutorial professional bias. What we have seen from LaSalle’s record, much like the conservative court under DiFiore, is someone who is more interested in protecting the interests of the wealthy and powerful than in ensuring that true justice is served in this state. The legal profession has a long way to go before public interest lawyers are properly represented in the judiciary. The New York Senate can take one important step in the right direction by rejecting Hochul’s nominee.