New search begins for New York chief judge as lawsuit over Senate process plays out

ALBANY — The search for a new chief judge for the state’s highest court is officially on — again — even as a lawsuit over how the Senate handles nominations plays out.

Chief Clerk Lisa LeCours declared the vacancy Friday in the high court in a letter to the counsel of the Commission on Judicial Nomination two days after the Democrat-led Senate rejected Hector LaSalle, Gov. Hochul’s first pick for the post, in a floor vote that followed weeks of in-fighting among Dems.

The unprecedented rejection also came on the heels of a lawsuit filed by a Republican senator after LaSalle was first rejected by the Senate Judiciary Committee last month and Democrats maintained a floor vote was unnecessary before reversing course on Wednesday.

The nomination commission now has 120 days to again vet applicants and recommend seven candidates to the governor to fill the position, which has been vacant since the resignation of former chief judge Janet DiFiore last summer.

“The Commission is mindful, however, of the novel circumstances presented and the need to swiftly fill the vacancy,” the panel said in a press release.

All candidates who previously put in for the position last year will again be considered by the commission and do not need to resubmit applications.

The process begins again as a Long Island judge heard arguments Friday in a lawsuit over Senate Democrats’ insistence that last month’s committee vote was enough to scuttle LaSalle’s bid.

Sen. Anthony Palumbo (R-Riverhead) sued the Democratic members of the Senate Judiciary Committee who voted last month against advancing LaSalle’s nomination to the floor as well as Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers).

Lawyers representing the Dems argued Friday during a hearing in Suffolk County Supreme Court that the suit is moot in light of the LaSalle vote. Palumbo’s attorneys, meanwhile, are pushing forward in a bid to clarify that the state Constitution requires floor votes for future judicial nominees.

“It is a straight-up question of constitutional law,” attorney James Catterson, representing Palumbo, said during the oral arguments. “Rare in my experience of practicing law do you have constitutional question framed so starkly.”

Attorney Andrew Celli, representing the Democratic defendants, maintained that the suit is nothing more than a tiff among legislators.

“This case is an internal dispute between Sen. Palumbo and his colleagues in the majority, it’s not an appropriate dispute for a court,” Celli argued. “If the governor were here we’d have a different question to struggle with.”

Justice Thomas Whelan, who repeatedly pushed back on Celli’s positions, said a decision on whether he’ll dismiss the case or allow it to proceed could come as soon as Tuesday.

Hochul, a Democrat, and LaSalle supporters railed against the Senate Dems’ initial refusal to take the nomination to the floor, arguing that the Constitution explicitly instructs that the governor get the “advice and consent” of the full Senate on nominations.

Senate Dems have argued that the Constitution also grants each house in the Legislature the power to set its own rules.

The governor, however, is not involved in the suit.

“I remain committed to selecting a qualified candidate to lead the court and deliver justice,” Hochul said in a statement following Wednesday’s vote.

LaSalle, a Long Island native, currently serves as the presiding justice of the 2nd Appellate Division in Brooklyn and he would have been the first Latino to lead the Court of Appeals if confirmed.

He faced fierce pushback from a wide range of opponents who argued the former prosecutor’s judicial records showed him to be anti-union, anti-reproductive rights and overall too conservative to lead the state court system.

Progressive Dems have called on the nomination committee and Hochul to put forth more liberal-leaning candidates in the wake of criticisms that the seven-member Court of Appeals swung conservative under DiFiore.

Stewart-Cousins noted that recent decisions by the U.S. Supreme Court rolling back abortion rights and striking down New York’s concealed carry laws heavily influenced lawmakers’ thinking during the protracted process.

“Everybody is paying attention, riveted, to who’s sitting in these seats, who’s sitting in the judiciary, who’s making these decisions,” Stewart-Cousins said. “So it was not inappropriate for us, with the eyes of the nation and the eyes of the state on us, to look for a nominee that was able to lead the court in this really, really critical time.”