Progressives may tank Hochul’s pick to lead New York’s top court. She's fighting back.

ALBANY, N.Y. — There should have been no surprise to New York Gov. Kathy Hochul that Hector LaSalle would become an unpopular pick to lead the state’s highest court.

Democratic leadership in the state Senate warned the newly-elected governor in early December that, of her seven-candidate shortlist for the judgeship, they could not guarantee the votes for LaSalle. Progressive members were deeply skeptical of the jurists’ values on abortion and labor rights.

Hochul nominated him anyway.

In doing so, the Democratic governor set up an unprecedented showdown with lawmakers over her choice for chief judge of the state Court of Appeals. She now faces the prospect this month that LaSalle will become the first top judicial nominee to ever be rejected by the state Senate.

The confirmation fight pits the moderate Hochul against the party’s progressives, but it is also dividing Democrats both in and out of the state Senate. Some are calling for a fair hearing for LaSalle, who would be the state's first Latino chief judge, and others are vehement in their opposition.

Progressives and labor leaders see the pick as a betrayal after many within their ranks worked to deliver vital last-minute votes to Hochul during the final frantic days of last year’s election. Some reluctant allies are regretting their decision.

“She promised us that we would have a seat at the table,” Jimmy Mahoney, the president of a statewide iron workers union, said at the state Capitol on Monday as labor leaders rallied against the nomination. “She put us on the menu. This is not right. The way it was rolled out, it was so unprofessional and backstabbing.”

At issue for the unions, progressive advocates and a coalition of liberal legal minds are a handful of decisions that LaSalle, who currently presides over the New York Supreme Court's Second Department in Brooklyn, had joined. Despite the larger nuances of the cases and their participants, opponents say the rulings suggest LaSalle does not support abortion and union rights.

One of the cases was related to a crisis pregnancy center that limited subpoena access to their promotional materials for an investigation by the state attorney general. Another involved Communications Workers of America and a company’s ability to sue a union official as an individual.

LaSalle’s background as a former prosecutor does nothing to assure the left that he would forge a new path away from increasingly conservative-leaning decisions coming down from the state’s highest court, the members of which were all appointed by Hochul or her predecessor, Andrew Cuomo.

Rather than pull the nomination, Hochul is preparing instead for her first big legislative battle as the state Senate Judiciary Committee gears up for a confirmation hearing on Wednesday. It’s possible the committee, newly bolstered with enough progressive senators to dismiss Hochul’s pick, will let the nomination die without advancing it to a full Senate vote.

Hochul, on Thursday, said she believes that questioning during LaSalle’s hearing will convince doubters. But if the committee rejects LaSalle, she also left the door open to taking legal action in order to move the nomination to a vote in the full Senate, where she might be able to secure enough backers by pressuring both Democrats and Republicans.

"I’m willing to do everything I need to do to get it through the committee,” Hochul told reporters after an event in Albany, saying that LaSalle has been “horribly maligned based on the handful of cherry-picked cases.”

“We’re going to let it run its course,” she said. “But I feel confident after the committee has a fair hearing that the process will play out."

No New York governor has had a nominee to the Court of Appeals rejected since governors were given the authority in the 1970s, and boiling tensions with the Legislature are hardly an ideal start to Hochul’s first full term after she succeeded Cuomo, who resigned in August 2021, and won election in November. Hochul and her staff are now pressuring naysayers and undecideds, an exercise requiring a large political capital investment — and maybe even an alliance with the GOP.

What's baffled many in Albany is that Hochul’s team didn’t do the political legwork to shore up support beforehand.

“They knew there was a problem, but instead of trying to work different members of the Senate, labor or choice groups, they just announced it and hoped for the best,” one Capitol aide familiar with the conversations, granted anonymity to discuss private negotiations, said of the governor’s office. “It makes no sense. If they did any sort of push, they could have got it through, but it is too late now.”

The outcry — including from a left-leaning coalition of community organizations and advocacy groups called The Court New York Deserves — has snowballed, with some critics labeling LaSalle “anti-labor, anti-due process, and anti-abortion.”

Hochul’s argument is simple: LaSalle, 54, would be the first Latino and first person of color in state history to serve as chief judge. The state Democratic Party, for which Hochul is the de facto leader, has been criticized in recent years for missing the mark in its outreach to and representation of the state’s vast Latino community.

Hochul wrote in a December Daily News op-ed that her priority has been to pick someone who would get the courts running efficiently again after the marred tenure of Chief Judge Janet DiFiore, who resigned last summer amid ethics inquiries.

Despite impressive resumes on the shortlist, some of the candidates preferred by the left didn’t have the longstanding record of judicial experience LaSalle did, Hochul has argued both publicly and privately to reluctant lawmakers. Hochul said Thursday that she would not have picked LaSalle if she felt he was at odds with her record in support of labor and abortion rights.

Her choice has earned praise from some top Democratic elected officials and a cohort of prominent legal experts, such as Jonathan Lippman, a former chief judge who pointed to his own liberal values and penned an op-ed in support of LaSalle.

Vincent Bonventre, an Albany Law School professor and close watcher of the top court, analyzed LaSalle’s record in several posts, saying that his votes and opinions don’t support opposition’s assertions he would be a barrier to reproductive or labor rights. Bonventre also laid out several cases he believed have been overlooked that would indicate the opposite.

State party chair Jay Jacobs — no friend to the left — dismissed progressive outcry as ill informed and inconsequential. A group called Latinos for LaSalle, with Latino Victory Fund chair and MirRam founder Luis Miranda at its head, has built a coalition of elected officials and community leaders “listed not in their official capacities, but as proud Latinos supporting the confirmation of Judge Hector LaSalle.”

One of those is Brooklyn District Attorney Eric Gonzalez, who overlapped at Michigan Law with LaSalle. Gonzalez released a statement praising LaSalle’s record on overturning wrongful convictions, saying “Justice LaSalle’s work safeguarding the rights of all parties who come before him, and his work ensuring that the scales of justice are balanced, is exemplary and supported by a strong and lengthy record that deserves a careful and fair review.”

But, ultimately, none of those individuals will make the decision. Democrats hold 42 seats in the 63-member Senate and confirming a nominee would require 32 votes. At least 14 have already publicly announced they would vote “no” and a half dozen of those said in interviews that there is additional private opposition within the conference.

Those opposed include Latino senators, such as Sens. Jessica Ramos of Queens and Gustavo Rivera of the Bronx. “Latinos deserve representation at the highest levels of the legal system, but we also need courts that respect workers and the right to organize,” Ramos said in a statement. “We can’t compromise our values.”

Rivera said: “I recognize that this may be a proud moment for our Latino communities to see one of us nominated to lead our state’s highest court, but a candidate’s ethnicity cannot be the only qualification by which we measure his capability or commitment to guaranteeing justice for New Yorkers.”

The Senate Judiciary Committee will hold a hearing because Hochul wants to proceed, said Sen. Brad Hoylman (D-Manhattan), who heads the committee, said in an interview this month.

“I think anyone can count the votes and see this is a steep hill to climb, but that said, if the governor wants to persist with this nomination, it is our responsibility to review it in committee and provide the vetting that is so important, especially for this position,” Holyman said.

Still, Democrats may have strengthened their barrier to LaSalle’s nomination: The Senate voted this month to expand the Judiciary Committee from 15 to 19 members — three new Democrats and one new Republican. The new Democratic members all have publicly expressed uncertainty or “no” votes for LaSalle.

If the Senate Judiciary Committee was to vote to reject LaSalle, Hoylman said that could be equivalent to rejection from the entire Senate majority, despite Hochul’s different analysis of the matter.

Senate Majority Leader Andrea Stewart-Cousins said she won’t presume an outcome until after the hearing, but told theGotham Gazette, “I do not see this ending in the way that the governor wished it would.”

The entire episode has come off as a potentially unnecessary waste of Hochul’s political capital before legislative session has even begun in earnest, particularly after Hochul supported a massive pay bump for lawmakers in the final hours of 2022.

“Cuomo was an ass,” said one of the Democratic senators who said they will oppose LaSalle and was granted anonymity amid ongoing negotiations with Hochul. “But he also understood that the perception of power is important. If he was warned, he wouldn’t have done it. Or he saw it was a mistake, he would have pulled it quickly. As this goes on, it becomes a whole story, and then if it fails, she looks way worse than if she’d just pulled it two weeks ago.”

The current Democratic math for a floor vote is against LaSalle, but there’s another way for it to go sideways: Republicans.

In what would be an embarrassing path to victory for Hochul, Minority Leader Rob Ortt said during a Monday press conference at the Capitol that his conference hasn't ruled out supporting Hochul’s pick, or at least hearing what he has to say.

Ortt, too, had preemptively reached out to Hochul’s office late last year regarding her judge pick, but never heard back from the governor or her staff, Ortt said.

“We have clearly telegraphed a willingness — which is more than I can say of the Democratic conference,” he said. “They have publicly said they are unwilling to consider Judge LaSalle, that he’s a non-starter. Our conference has kept an open mind, and yet the governor has refused to reach out to me or to engage in a conversation.”

Joe Spector contributed reporting.