Judge LaSalle Nomination Rejected

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Mayor Adams will join us later this hour to talk primarily about his new program to offer free abortion pills at four New York City sexual health clinics. Did you hear about that? He sees it as part of a larger agenda for women's health equity in the city. He wants the city to be a leader on that and as part of the city's response to the Supreme Court overturning Roe v. Wade, even though abortion rights are secure for now in New York. So the mayor coming up in about a half hour, 35 minutes on that.

Also, today, selling homes while Black. Did you see that story in The New York Times? We're going to talk to the writer and take your phone calls, your stories. At the end of the show today, we've been doing the series on defining news events of your life decade by decade. Well, today, we will take calls from people of any age on the defining news event that's hyper-local. In other words, most of the things people called up with have been these iconic national and global news events, Pearl Harbor, the JFK assassination, January 6th, Trayvon Martin, the Pandemic. We're going ask what was the most defining news event at any time in your life from your block or from your immediate neighborhood. That's coming up.

First, though, maybe you've been hearing about the spectacle in Albany yesterday where the State Senate Judiciary Committee with the majority of Democrats rejected Governor Kathy Hochul's nominee to be the state's chief judge. There may still be a path forward for Hochul and Judge Hector LaSalle that might be determined in court, but how rare to have the governor nominate someone for chief judge that she knew her own party's judiciary committee was pretty likely to reject. We have the chairman of the New York State Senate Judiciary Committee, Senator Brad Hoylman-Sigal of Manhattan, who's going to give us his take in just a minute. We'll play some clips of LaSalle from the confirmation hearing, you can decide for yourself, and like I said, there may still be a path for him to get the job, but let me offer one thought first.

When Governor Hochul chose Judge LaSalle, she must have known full well that this backlash would come. There's evidence of that, right from our own show. On December 15th, knowing the governor was choosing from the list of seven people, we had two advocates on for the more progressive judges on the list, and one of them, Noah Rosenblum, from the NYU Law School called out LaSalle by name. Specifically, he compared LaSalle unfavorably to the retired mostly conservative Supreme Court Justice Anthony Kennedy.

Noah Rosenblum: Why do I think about Kennedy? Kennedy was super conservative but actually, on some rights questions, especially those related to sexual identity and expression, he was ready to push the federal constitution to be more rights protected. Some of the judges that are on the shortlist that I think of as conservative, like Judge LaSalle, for example, seem to have taken positions that suggest they don't appreciate just how important some of these rights, like rights to sexual autonomy, really are, and the ways in which people are trying to interfere with them. That's something that makes me worried.

Brian: Judge LaSalle would probably disagree strenuously with that characterization of him, but there was NYU Law School professor Noah Rosenblum here on the show on December 15th, and then on the 23rd Hochul nominated LaSalle to be chief judge. With me now is State Senator Brad Hoylman-Sigal, Democrat from Manhattan and chairman of the Senate Judiciary Committee. He ran yesterday's hearing. Senator, thanks for some time when you're right in the middle of this. Welcome back to WNYC.

Senator Hoylman-Sigal: Good morning, Brian. Thanks for having me.

Brian: Before we even get into the merits of Judge LaSalle, can you address the idea that I just laid out that Governor Hochul must have known this nomination would run into this firewall of opposition from you and others in her own party, but she nominated him anyway? Do you think she knew or didn't know?

Senator Hoylman-Sigal: I can't explain it. It certainly wasn't just guests on your program. It was senators, it was insiders, it was advocates who reached out to the governor, to the second floor, and expressed our concerns in advance of her nomination. I can only suppose that she thought it was a fight worth pursuing at the end of the day.

Brian: Go deeper on that, if you can. Why did she pick this fight? There were seven judges. This is the way the system works. For listeners who don't know, there's a judicial nominating committee that came up with a list of seven judges, who she had the option of choosing from. Three of them were enthusiastically supported by more progressive advocates like that guest on my show in December, and LaSalle had been criticized by name in advance. Why did the Democratic governor pick this fight with a Democratic Senate in your opinion?

Senator Hoylman-Sigal: Well, I'll also say that it's particularly puzzling given the fractured court of appeals that exists currently and the need to have a new chief judge who brings that court together. Judges are actually at odds with each other on that court, and in a way that is unprecedented, if you read some of their recent decisions. That was all the more reason why you would want a unifier on this court, and just alone given the public rancor that this nominee resulted in, would, in my mind, be enough to find a different candidate. Why she chose this judge? I can only think that she wanted to make a statement to New Yorkers that she has her own opinions. This was her prerogative as it is in the constitution, and she didn't want any advice from the Senate, apparently. I guess that's why we withheld our consent.

Brian: Even though the state constitution is similar to the federal constitution or the federal processes says with the advice and consent, those words, of the Senate. Did the governor not reach out to you as judiciary committee chair at any point to take the temperature of the committee or did you proactively let her know which judges would be a problem? What was communication like, if any, between you and her before the nomination?

Senator Hoylman-Sigal: I proactively reached out and expressed my concerns about particular candidates including this one but the truth is that it's the governor's decision, of course, but we can say that we warned her about this selection. Even with that and after the selection process had been completed, we gave plenty of signals that the votes did not exist in the committee. That might have been another moment, Brian, where the governor could have withdrawn the nomination and sought a different candidate, but again, we were rebuffed at that juncture too, to be honest.

Brian: The governor says the nomination is not dead and the full Senate has to vote on Judge LaSalle under the law. You disagree, and you believe you killed the nomination in committee. Maybe that will wind up in court. Meanwhile, let's talk about the nominee. Judge LaSalle is currently, and I'm saying this for our listeners' benefit who never heard of Judge LaSalle until there's controversy, he is what's called the Presiding Justice of the Appellate Division of the Second Judicial Department of the New York State Supreme Court. I don't know how he fits all that on his business card, but that means he presides over cases that are appealed, civil and criminal cases alike, in Brooklyn, Queens, Staten Island, Westchester, and several other counties outside the city. He doesn't call himself conservative, but you do. Is he Samuel Alito conservative, Clarence Thomas conservative? What do you mean by conservative?

Senator Hoylman-Sigal: Well, he did run on the Conservative Party line. Let's make that clear.

Brian: Wait. If I understand this correctly, he says like a lot of judges who basically run unopposed once they're nominated by their main parties, he got Democratic, Republican, Working Families, and the Conservative Party lines. He got all of them. To say he ran on the Conservative Party line is misleading in that respect, he would say. Fair?

Senator Hoylman-Sigal: No, I disagree. That's a decision to take a line, a decision to take a line from a party that is opposed to reproductive health, that is opposed to workers' rights, that is opposed to LGBTQ marriage equality. Add that to the ambiguity around the decisions of what she has been part of on those very same issues, and it raises a lot of questions, Brian. That's why you had--

Brian: Even though the Working Families Party also gave him their endorsement.

Senator Hoylman-Sigal: Even though the Working Families Party also gave their endorsement, the Conservative Party line in my opinion, in the opinion of many of my colleagues, is the third rail of democratic and progressive politics. I hope we have made it clear moving forward that we will not accept the nomination of judges who run on that line.

Brian: Now, two main cases have been in the news causing opposition from progressives, one involving an anti-abortion crisis pregnancy facility, as they call it, the other involving union rights. A number of unions have come out in opposition, that was one of the main factors, I think, in this being defeated in committee. The union rights case, I'm explaining this to listeners who haven't heard this before, had to do with whether a company could sue a union leader for defamation if the union leader was defaming someone as an individual not in his capacity as a union leader.

LaSalle did not come up with this decision on his own, he was part of a majority that said, "Yes, as a technical matter, you can separate what a union leader says in his professional capacity, which is protected, and when he's like any other citizen, if he defames someone as an individual rather than in the context of his job, he can be sued for defamation." That was a majority opinion of the court, not just LaSalle. Yesterday at his hearing he said this.

Judge Hector LaSalle: We must protect the right to organize to ensure that our unions can thrive and this is what I believe. If that is different from what you have heard or read, I am happy now to set the record straight.

Brian: Is that ruling as part of an appeals court majority such a defining issue for you and in the context of what he said there about supporting the right to organize?

Senator Hoylman-Sigal: I think that ruling in and of itself led a number of my colleagues on the committee to vote no. When you have the AFL-CIO, and other unions like 32BJ, and CWA opposing this nominee tooth and nail for his decision on workers' rights, it's really hard as a Democratic senator to ignore that. This was one of the bigger obstacles, there were several others in his decisions, but he did not respond, in my opinion, adequately to give my colleagues sufficient comfort that he disavowed that decision and would rule differently moving forward.

Brian: Why should somebody in their personal capacity, not their professional capacity, be exempt from being sued for defamation?

Senator Hoylman-Sigal: Well, I think the issue is part of it is that these individuals were, in fact, acting in their professional capacity and the chilling effect that his decision had on union organizing is still being felt today according to our allies in organized labor.

Brian: Can you go into that a little bit? I haven't heard anybody lay that out and I think it would be really interesting because the court ruled that somebody could be sued for defamation if they were not acting in their capacity as a union leader. That's chilling, organizing, and union activity?

Senator Hoylman-Sigal: Yes, if you're acting and you're-- look, they were in a union hall when these statements were made, no one's alleged that they were acting in their individual capacity. If you're now being exposed to litigation as an individual, I think that will send a message that you perhaps would seek another line of employment. That when you go out and speak on behalf of your brothers and sisters in labor, that you can be sued as an individual, that would seem to be an enormous disincentive to speak out on issues of workers' rights.

Brian: I don't know where the line is, personally. If somebody's a union leader for a living and in some context says something against the company or one of the managers of the company, I mean, the person is a union leader for a living so I don't know how one would even draw that line to say, "Oh, he was speaking in his personal capacity at that point." The case is questionable to me on those grounds, but I don't know.

Senator Hoylman-Sigal: Well, how about this, Brian, the individual in question made these remarks at a union town hall. Let's just draw a bright line around where you made the remarks in this case, and I think you'll come to a different conclusion.

Brian: All right, the other case in the news is technical about the scope of a subpoena for an anti-abortion facility in the state, in that case, LaSalle's vote though was just part of the unanimous ruling by the court. He did something at the hearing yesterday that certainly no Supreme Court Justice nominee in Washington ever did to my ear, he said flat out that he is for a woman's right to choose. Why tack him as soft on abortion rights from being part of that unanimous opinion and in the context of saying he's pro-choice?

Senator Hoylman-Sigal: Well, I think that there was sufficient concern that the attorney general's investigation was hobbled by the court. Remember also, Brian, what they were seeking here in this case. They were seeking printed materials by a so-called Crisis Pregnancy Center that were already distributed to the public advertising their services which were alleged to be fraudulent and convincing individuals to seek these services when they were misleading the public about the true nature of them. The First Amendment question seemed to be misplaced, especially since the promotional materials had already been released to the public.

Brian: Listeners, are you paying attention to LaSalle's confirmation process? Did you watch any of the hearings yesterday? I'm sure people were not glued like they were to the Brett Kavanaugh hearings or something like that but did you watch any of the hearings yesterday? Or do you have an opinion about LaSalle or this process one way or another? Any lawyers who've practiced before him also welcomed call in. Anyone else, 212-433-WNYC, 212-433-9692 for the chairman of the State Senate Judiciary Committee, Senator Brad Hoylman-Sigal of Manhattan and again chairman of the State Senate Judiciary Committee which voted not to send this nomination to the full Senate floor, though Governor Hochul is trying to find another way to get it there.

LaSalle supporters are also raising a consistency issue. As I know you know, Senator, they say the Senate democrats confirmed without hesitation too much more conservative judges that Governor Cuomo appointed to the Court of Appeals, Madeline Singas and Janet DiFiore, but now with this less conservative judge, you're blocking the nomination. I want to play a clip from the show of one of LaSalle supporters, prominent supporter, former New York City Council Speaker, Melissa Mark-Viverito, obviously a leading progressive in New York. She spoke on this program last week.

Melissa Mark-Viverito: When we talk about the first female governor presenting the first candidate of color and he is getting this vitriolic response from many of those who are opposing and said he shouldn't even have an opportunity to be presented in a hearing. We shouldn't even have a hearing is the claim I've heard from some. Why is this nomination being held to such a different standard than prior nominations and confirmations in the past of conservative nominees who were confirmed unanimously in some cases by the very same people who are now saying that LaSalle's nomination is unacceptable? That is an inconsistency.

Brian: Want to respond to that, Senator?

Senator Hoylman-Sigal: Sure, this is the first time that the Democratic majority in the Senate has considered a chief judge's nomination. It is qualitatively different especially Brian, when you know what's going on nationwide and particularly in our United States Supreme Court. The stakes are a lot higher since Roe v. Wade was overturned. The stakes are a lot higher since workers' rights have been curbed and there are new questions about regulations around gun safety. Yes, we put this nominee under the microscope and I think it is entirely appropriate understanding that New York State is now the crucible for so many constitutional decisions given that the Supreme Court has kicked those back to New York and other states.

Brian: Melissa Mark-Viverito also mentioned that this just happens to be the first Puerto Rican chief judge nominee put up by the first woman governor and was questioning why. Interesting. In this situation, suddenly people are taking a stand against a so-called conservative. Concerns about the diversity issues here. Identity issues here.

Senator Hoylman-Sigal: Of course, representation matters, Brian, and I think the former speaker is absolutely correct on that front, but I hope every Court of Appeal nominee going forward has this level of thoroughness and examination. Look, I think this is a moment to celebrate the fact that New Yorkers were engaged in this process, that we had a back and forth, that we had a civil hearing. It didn't come out the way that the governor or the nominee's supporters would've liked, but I don't think anyone can say that yesterday's hearing wasn't thorough and wasn't fair. In fact, the nominee himself said that as he left the dais.

Brian: All right, continue and finish up with Senator Brad Hoylman-Sigal. We do have some calls coming in. We'll take some of your calls. We'll also preview a little bit of what will probably be the dominant New York State government news story over the next two and a half months or so and that is the budget negotiations that take place this time of year where everything is in play. We'll talk a little bit about housing, migrants, funding for them that the mayor wants. We'll also ask the mayor about that. He's coming on in about 15 minutes but stay with us for a few more minutes with state Senator Brad Hoylman-Sigal in his role as chairman of the Senate Judiciary Committee right after this.

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Brian Lehrer on WNYC. As we continue for a few more minutes before the mayor comes on with State Senator Brad Hoylman-Sigal of Manhattan, in his role as Chair of the State Senate Judiciary Committee, which yesterday rejected Governor Hochul's nomination of Hector LaSalle to be the state's chief judge. To the question of whether the nomination is dead or not, Senator, the state constitution says the governor appoints judges with the advice and consent of the Senate. The governor says that specifies the Senate advice and consent of the Senate, which means the full Senate. LaSalle is entitled to a full Senate floor vote and you cannot kill the nomination in committee. You disagree.

Senator Hoylman-Sigal: I strongly disagree. There's another part of the state constitution where it states that the Assembly and the Senate set their own rules. Brian, I think your listeners know that legislatures work through committees. That's something we learned in grade school, that the work we do is based on the committee's recommendation. Otherwise, we'd have every bill and every nominee going directly to the floor of our respective chambers. That's not how it works and that's not the rules that we have in our constitution.

Brian: Nicola in Harlem, you're on WNYC. Hello, Nicola.

Nicola: Hey, Brian. Can you hear me all right?

Brian: Can hear you just fine. Thanks for calling.

Nicola: I'm your regular political junkie, very progressive. If there's an inkling that this guy is a potential conservative that will vote against labor rights, I belong to a union and women's rights as it comes to choosing for our bodies, he has to go, No, he shouldn't be put up as a nominee. We can't trust that. Look at what happened to the Supreme Court when you had Kavanaugh and the rest of them saying that we're not going to touch abortion and they did.

Brian: Interesting precedent. Relevant precedent. Fair enough. Roger in Greenwich Village, you are on WNYC. Hi, Roger.

Roger: Hi. With respect to the defamation case, what did the union leader say in the Union Hall about whom? Let's get the facts of the case.

Brian: Do you know Senator?

Senator Hoylman-Sigal: So-called defamatory statements against the employer Cablevision, but I think--

Roger: What was said? Did they say the owners of Cablevision were murderers or did they say something that relates to labor? What are the facts of the case? That much has been made of this, but nobody has asked this question and nobody has provided an answer to the public.

Brian: It's a fair question, except that I think the ruling wasn't about whether the statement was defamatory or not. The ruling was about whether that union leader could be sued for defamation as an individual because if he said whatever it was in the context of his being the union leader, he couldn't even be sued. That was my understanding of what the case was about. It actually makes the content of what he said moot, but Senator, am I characterizing that correctly?

Senator Hoylman-Sigal: You're absolutely correct. The defamatory statement wasn't in the judge's opinion at all.

Brian: How about Travis in Bayside? You're on WNYC. Hi, Travis. Travis, you there? Travis once. Travis twice. Philomena in Westchester. You're on WNYC. Hello, Philomena.

Philomena: Good morning. As a female, I feel very strongly about electing female candidates. I feel very strongly about electing people of color, but there's not a chance that I'm going to vote for a female or a person of color simply because they are a female or a person of color. They have to have political views that align with my ideals of what I want from a political person.

The comment that was played earlier about how could the first female governor not for go for the first person of color for this position, that's ridiculous. It should be about the person's political positions, not about whether they're female or a person of color and I strongly believe in more representation on both of those fronts, but not solely from that perspective.

Brian: Thank you for your call. Erica in El Barrio, she's identifying herself as East Harlem. Hi, Erica. You're on WNYC.

Erica: I just want to say that the conversation that's been dismissed is also about the treatment of Hector LaSalle. This person, people shut him down without even hearing about him first and it concerns me because as a former journalist, I covered the Sotomayor hearings and I heard how people, even liberals made assumptions. Two days before LaSalle up, people are talking about his intellectual clout and that those were the same thing, questions that were brought up for Carmen Ciparick who's also Puerto Rican, and Sonia Sotomayor.

There's very little conversation in the media and among people about the way a Puerto Rican nominee is being treated. The Judiciary Committee was stacked against him overnight. He was not heard out. People made their decisions without hearing him out. This is the longest scrutiny, Janet DiFiore which some of the current state senators ushered into the court along with Singas, was given one hour of scrutiny and she's an ultra-right winger. This contradiction, this hypocrisy really needs to be brought up. It's really unfair and it sends a bad message to Puerto Ricans. It sends a bad message to Latinos because these were anti-democratic tactics that were applied.

Brian: Erica, thank you very much. Those were some of the same points that Melissa Mark-Viverito was making when she was a guest on the show in support of Hector LaSalle last week. What do you say to Erica on some of that Senator Hoylman-Sigal?

Senator Hoylman-Sigal: I acknowledge the importance of representation. We had over 200 people in the hearing room who were visibly moved by Justice LaSalle's comments. It comes down to the fact that there were strong disagreements with his decisions. Many of those decisions, by the way, Brian, were two or three sentences. He had over 5,000 opinions that he had signed onto, six that he had personally authored.

There was a lot of scrutiny. I agree, but I think it was warranted, given the importance of the position. We've been advocating though, for diversity on the bench with legislation regarding the demographics of the judiciary, but given the ambiguity around his record and the stakes being so high, as some of your callers have mentioned, and the fact that this person is going to be on the bench for 14 years, there can be no doubt in our minds that we have to select the right person and Justice LaSalle just did not meet that admittedly high standard.

Brian: Let me fact-check one thing because one of our listeners is saying that LaSalle made it to the bench, he did not have the Working Families Party endorsement as I had said earlier, I saw that in some press coverage that he had run with the Democratic, Republican Working Families and Conservative Party endorsements but can we clear up that fact, did he have Working Families Party, as far as you know?

Senator Hoylman-Sigal: As you said yesterday, I believe he subsequently had Working Families Party line endorsements and I should also note after his first run, and I should also note that he contributed money to the Conservative Party. Look, these judges run on a lot of different lines but I do think they have to be mindful about what those parties stand for, and should be held accountable.

Brian: Before you go, the New York Times story on this, framed it as the first skirmish in larger battles to come, some language similar to that, over the next few months, that you continue to have a veto-proof supermajority in the State Senate and so you can wield a lot of power vis-à-vis the governor, and that it's going to come up on a number of items in the budget negotiations for this year, which are getting underway right now and are supposed to be completed by the end of March. Do you see any bright dividing lines between you and the governor on budget issues as of now?

Senator Hoylman-Sigal: I'm sure there will be as the negotiations proceed and certainly this does not set the table in a friendly way, particularly if there's litigation, Brian. If there's litigation, that's going to be such a distraction, whether it's time, energy and money, money on the part of the people of New York to have one branch suing another.

I hope that we can move on quickly, the governor seeks a new list of nominees from the commission on judicial nominations, someone we can coalesce around, and bring back to the Judiciary Committee, but I would like to think this is a bump in the road. Democrats can disagree and we can also get over our differences and hopefully work for the common good.

Brian: Give me something on the budget. We're entering the main part of the year, again, for the background of listeners who don't know the Albany calendar by heart, budget negotiations beginning now, as I said, it's supposed to be concluded by the end of March. Give me your take on housing, how much can you do for housing, especially supportive housing, which is so front and center right now in people's minds as it relates to crime, as it relates to mental health, and just as it relates to fair services for people who need supportive housing?

Senator Hoylman-Sigal: Well, I really do admire the governor's plans that she laid forth in the State of the State. Part of that is making certain that our suburbs do their part, and that we lift and remove restrictive zoning that has been discriminatory and prevented housing from being built across our state. She's got a plan to do that, including what's called transit-oriented development, an issue that I support strongly. She wants to build 400,000 units within the next 10 years and that also includes supportive housing.

She has a project in my own district for a new supportive housing facility at a former women's Correctional Facility, which the community and I strongly support. I think housing should be front and center and she's making it a priority.

Brian: How about money that Mayor Adams, who's going to be on in just a minute is asking for with respect to resettling migrants in New York, the asylum seekers from various countries, is that something the legislature is going to take up in the budget?

Senator Hoylman-Sigal: I hope so because frankly, we need to convert different uses of buildings so we can have housing not just for asylum seekers, but for everyone and there is interest among my colleagues to pursue that. There's also interest in housing, in connection with mental health, the governor has suggested a billion dollars toward that and some of that will be toward supportive housing. We'll obviously need to see the details but we want to be supportive and I think part of my job, Brian, as a New York City elected official is to make sure that the state does provide its fair share, as I'm sure Mayor Adams will say shortly, in this ongoing struggle to meet the needs of all of our asylum seekers who are in New York City.

Brian: State Senator Brad Hoylman-Sigal, thank you so much. We really appreciate it.

Senator Hoylman-Sigal: Thanks so much, Brian.

 

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