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Internecine warfare has broken out among NY State Senate Democrats over the nomination of Justice LaSalle. At the center of this warfare is Justice LaSalle — an experienced jurist who is currently the Presiding Justice of the largest branch of the State’s Appellate Division – for the position of Chief Judge of the Court of Appeals. Justice LaSalle would be the first person of color to hold the office of Chief Judge of the State.
We take no stand in the ultimate outcome of this battle. We do not endorse judicial nominees as a matter of bar association policy. But, here, we speak out to urge a process as free from politics as possible, and we reject efforts to evaluate a candidate for this important position based solely on political labels and political rhetoric. Judicial independence, long a bulwark of our Association’s principles, demands no less. Nor should the political attacks on Justice LaSalle’s judicial philosophy obscure another important criterion for this job: the ability to oversee our state’s vast court system.
Justice LaSalle detractors deride him as a “conservative” who would cement a “conservative” majority on the Court of Appeals. This is nonsense. The six other judges on the Court of Appeals were all appointed by Democratic governors, and only one (Judge Garcia), a Republican, can fairly be described as a conservative. Indeed, Justice LaSalle was appointed to the Appellate Division by a Democrat. The Second Department, over which he presides, is arguably the most liberal leaning of the state’s four Appellate Division Departments. True, he served as a prosecutor before becoming a judge, but so did Justice Sotomayor. Justice Kagan, who served as Solicitor General of the United States, was the nation’s top appellate prosecutor. No one would describe them as conservative.
Justice LaSalle’s detractors have cited very few decisions in support of the notion that Justice LaSalle is a “conservative.” As chronicled elsewhere, Justice LaSalle merely concurred in and did not author most of the decisions that his critics have cited. And none of those cited decisions can fairly be depicted as “conservative,” much less legally erroneous. As nine former appellate judges wrote a few days ago regarding the unfair criticisms of Justice LaSalle’s record: “To read into these memorandum decisions broad philosophical viewpoints on subject areas such as abortion rights and labor union rights is as unfair as it is uninformed.” (statement of judges).
Instead of fairly opposing Justice LaSalle’s experience or record, many of Justice LaSalle’s opponents apparently believe that the Court has swung too far to the political center (or even the right) and seem to view nearly any ruling against a criminal defendant as an injustice. They want an activist on the bench who will reshape the system. They oppose Justice LaSalle, at least in part, because of a ruling by the Court of Appeals in which Justice LaSalle had no involvement. Last year, by a slim majority, the Court of Appeals struck down the heavily gerrymandered Congressional map created by the Legislature. The Court sent the case back to the trial judge, who assigned a special master to create a new map, which resulted in the Republican party gaining several seats in Congress. Many of Justice LaSalle’s critics now want to put a reliable politician on the bench – a politician who will approve whatever maps the Democratic legislature creates, no matter how gerrymandered or biased. Because Justice LaSalle is not a politician, but rather a respected judge, they fear that he will not be a reliable political ally. This way of thinking is anathema to us, as leaders of one of the nation’s oldest Bar Associations, because it strikes at the very heart of judicial independence.
Over the past several weeks, as this political assault against Justice LaSalle (who, as a sitting judge, cannot defend himself) has unfolded, a bipartisan coalition of former judges and civic groups has come to his defense. Former Chief Judge Jonathan Lippman – a progressive – has condemned the effort to deny Justice LaSalle an up-or-down vote on the Senate floor. (Chief Judge Lippman’s statement). LaSalle’s nomination has also received the support of several other former Judges of the New York Court of Appeals, partners of many major New York City law firms, the Business Counsel, and the Partnership for New York. (Former Court of Appeals Judges’ Statement. Law Firm Partners’ Statement Business Council Statement).
As we wrote in a recent op-ed to the New York Law Journal, the judicial confirmation process should not be politicized. Importantly, Justice LaSalle’s nomination came after a bipartisan merit-based process, at the core of which was the Commission on Judicial Nomination, a commission composed of leading attorneys from throughout the state. That Commission was created to insulate the New York Court of Appeals from politics – an admirable idea given the politicized nature of judicial selection today. Efforts to undermine that merit-based selection process threaten the rule of law and judicial independence.
We should want a fair-minded jurist leading the State’s highest court, not a politician in a black robe. Justice LaSalle deserves a fair hearing in the Senate to determine whether he fits that bill. New York law, and the New York Constitution, require that he receive an up-or-down vote in the full Senate. Just like any litigant who comes before him, Justice LaSalle is entitled to due process and a fair hearing. If he proves himself qualified after that hearing, he should be confirmed.
Vincent T. Chang, NYCLA President Adrienne Koch, NYCLA President-Elect