GUEST COLUMN: A high-stakes nomination for state’s highest court

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By Adriel Colon-Casiano
For The Sunday Gazette

Gov. Kathy Hochul’s nomination of Justice Hector LaSalle to serve as the next chief judge of the Court of Appeals set off a heated controversy over his qualifications and ideology.

For the first time in New York history, the state Senate might reject a nominee to New York’s highest court.

The focus on LaSalle himself and what beliefs lie in his heart has obscured this nomination’s real stakes.

Under a conservative majority, the Court of Appeals has proven hostile to individual rights and democratically enacted policies.

The next chief judge will either help balance the court or cement a conservative majority for years to come.

New Yorkers could be forgiven for assuming that, in a solidly blue state governed by Democrats for two decades, our highest court reflects the state’s liberal leanings.

However, a judicial nomination process that relies on personal connections and political alliances has produced a court in which liberals are in a powerless minority while conservatives hand-picked by former Gov. Andrew Cuomo vote in lockstep.

The leaders of this conservative bloc have been Michael Garcia, a Republican who ran Immigration and Customs Enforcement in the George W. Bush administration; and Janet DiFiore, a former Republican who rose through the Westchester County District Attorney’s office under Fox News’ Jeanine Pirro.

Cuomo appointed DiFiore as chief judge and Garcia as associate judge in 2016, but the seven-member Court of Appeals remained ideologically fluid for several years.

Many Court of Appeals cases are decided unanimously, and the presence of “swing” judges such as Leslie Stein made outcomes unpredictable. Although the court leaned right, as when it partially struck down the 2019 rent regulation law, DiFiore and Garcia could not always secure majorities for their conservative positions favoring police, prosecutors and corporations over injured plaintiffs or people accused of crimes.

That changed in 2021, when Cuomo’s final two appointees took the court into uncharted territory.

Madeline Singas and Anthony Cannataro replaced two swing judges, despite concerns about Singas’s prosecutorial record and Cannataro’s management of New York City’s housing court during the pandemic.

A new controlling bloc emerged: DiFiore, Garcia, Singas and Cannataro voted together in 96 of 98 cases.

Their four votes outweighed the other three judges, even when moderate Eugene Fahey or his successor, Shirley Troutman, voted with the court’s liberals, Jenny Rivera and Rowan Wilson.

This conservative bloc rejected a claim that New York’s prisons illegally hold people past the end of their sentences; limited defendants’ right to call expert witnesses; made it easier to criminalize soliciting money on the street and harder to sue over police brutality; and prevented employees injured at work from recovering damages from employers.

In the term’s highest-profile case, the conservative bloc held that New York’s congressional and state Senate districts had been illegally drawn and, rather than sending the matter back to the elected Legislature, empowered a single Republican judge in a solid red county to select new maps. This scrambled New York’s elections and likely helped Republicans take control of the House of Representatives.

As it grew more conservative, the DiFiore court also grew less respected.

The court, now dominated by prosecutors, took fewer cases and rarely granted leave to appeal for criminal defendants. At the same time, its decisions came more often as short, unsigned memoranda devoid of explanations.

DiFiore’s unexpected retirement last summer while under an ethics investigation opened a gap in the solid conservative bloc. However, there is every reason to think LaSalle would be a true successor to DiFiore, voting in lockstep with Garcia, Singas and Cannataro, and continuing the court’s rightward slide. Indeed, in eight of the nine cases that both he and the court’s conservatives have ruled on, LaSalle sided with the conservative bloc. And public defenders who practice in front of LaSalle, a former prosecutor, say he gives short shrift to their client’s cases.

The question facing the state Senate as it considers LaSalle’s nomination is, what kind of Court of Appeals should New York have? A court dominated by ideological conservatives, or a balanced court with a range of backgrounds and perspectives?

Adriel Colon-Casiano is a Latino attorney in the Capital Region who recently signed on to a letter from more than 70 Latinx leaders opposing the nomination of Hector LaSalle to the New York Court of Appeals. He previously represented the New York State Bar Association as its lobbyist during the Troutman, Singas and Cannataro nominations to the Court of Appeals.

Categories: Guest Column, Opinion

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