The job doesn’t get much publicity outside of legal circles, but the chief judge of the state Court of Appeals is one of the most important positions in state government.
The chief judge leads the state’s highest court in adjudicating appeals from the lower state courts on issues ranging from housing, to gun laws, to election redistricting, to criminal matters and much more. The court is effectively the final arbiter of the law for 20 million New Yorkers. The chief judge also leads the state’s massive court system, with its 16,000 employees and a budget of more than $3 billion, and appoints the chief administrative judge, who runs the courts under the chief judge’s oversight.
The Court of Appeals needs a permanent chief judge. But right now it doesn’t have one. And given the latest political situation, it doesn’t look like it will have one anytime soon.
That needs to change, as do some of the practices that have led us to this point.
The position became vacant nearly five months ago, when then-Chief Judge Janet DiFiore was forced to “retire” after it was reported that she was under investigation by the state Commission on Judicial Conduct for improperly interfering in a disciplinary hearing. Since Sept. 1, the court has been led by an interim chief judge, Anthony Cannataro. Without a chief judge, the seven-member court is down to six members, now equally divided among conservatives and liberals/moderates. That alone could result in difficulties reaching decisions on controversial cases — a big problem for the court.
The selection of Judge Cannataro to temporarily succeed DiFiore itself raised questions because DiFiore remained on the court and came out in support of Cannatoro, a close ally. A chief judge leaving under a cloud is not supposed to be in a position to help pick his or her own successor. So the issue of picking a temporary successor is one part of the selection process that needs to either be changed or clarified.
But it’s not the only one.
Another questionable process involves the selection of candidates for chief judge.
The governor appoints a chief judge nominee from a list of qualified candidates prepared by the Commission on Judicial Nomination. That nominee must then be confirmed by the state Senate.
The nomination commission is supposed to be nonpolitical, helping ensure that judges are selected on their merit rather than politics.
But of the 12 commission members who select the candidates for chief judge from which the governor must pick, four were appointed by DiFiore and two were appointed by former Gov. Andrew Cuomo, who appointed DiFiore. Four other members were appointed by the four respective legislative leaders, while the remaining two were picked by Gov. Kathy Hochul.
Therefore, the candidates for the chief judge’s replacement, at least in part, reflect the politics of the outgoing, disgraced chief judge and a disgraced former governor. Left off the final list of nominees were Court of Appeals judges Jenny Rivera (the court’s most senior member), Rowan Wilson and Shirley Troutman, all of whom have a record of voting against DiFiore. Coincidence?
Regardless, Hochul selected one of the seven recommended candidates on the list, Judge Hector LaSalle, a conservative like DiFiore. The governor apparently made the pick without vetting her choice with leaders of the Senate, without considering the progressive political shift in the Democrat-controlled Senate and without making sure she had enough votes lined up in advance to get her nominee confirmed.
That brings us to another issue. The Senate Judiciary Committee is tasked with sending nominations to the full Senate floor for approval. But just prior to considering the nomination, the committee added four new members, three of whom stated their opposition to LaSalle even before any hearings were held. How is that right or fair to the selection process?
Then there’s the latest controversy over whether the Judiciary Committee has the power to deny the nomination or whether the full Senate must vote on it. Senate leaders claim the nomination died when the Judiciary Committee refused to pass it to the full Senate. Hochul is deciding whether to challenge that position in court.
Even if she wins, it’s very possible LaSalle’s nomination will be defeated by the full Senate, sending her back to the old, incomplete list for another nominee.
Hochul said last week that she’s in no rush to decide her next step, telling reporters she’s conducting a “thoughtful analysis” to make the best decision for New Yorkers.
All that means is that this could be an even more protracted process.
We’ve long urged the governor to see her pick through to the end and fight for a legal decision requiring a full Senate vote on her nominee. But as we enter the sixth month without a chief judge, the prospects of LaSalle being appointed get dimmer.
It might be best now for the governor to throw in the towel and nominate a candidate more palatable to the Senate, polling leaders to ensure a quick and smooth approval process before the full Senate (as she should have done in the first place), and for her to continue to seek a ruling on the constitutional interpretation of whether the full Senate must vote to confirm future gubernatorial nominees.
State lawmakers, in the meantime, should consider all the flaws in the process for replacing a chief judge and make the necessary changes to make the process more fair, more expedient and less political.
Right now it’s a mess. And the state’s court system, and by extension the people of New York, are suffering for it.