Kathy Hochul is wrong about the New York Constitution

Any argument that the State Senate is constitutionally obligated to vote Hector LaSalle's nomination up or down is contradicted by the plain text

We might question why Kathy Hochul is so committed to the seemingly-doomed nomination of Hector LaSalle to the state Court of Appeals. Fresh off an embarrassing re-election campaign—in which she barely defeated her hard-right Republican opponent—she’s decided to use her limited political capital to nominate a conservative jurist to the state’s highest court, locking in a prosecution-friendly, center-right majority.

Needless to say, it hasn’t gone well. Amidst a new focus on state courts, Democrats in the State Senate have pushed back against LaSalle’s nomination—and it very much looks like LaSalle may not advance out of the Senate Judiciary Committee tomorrow, possibly ending his chances.

Accordingly, Hochul has resorted to a new argument: the Senate is obligated under the state constitution to give LaSalle’s nomination a floor vote. (Tacit in this argument is likely the idea that LaSalle may be able to be confirmed with Republican votes.)

Hochul’s argument is pretty simple. Under Article VI, section 2(e) of the New York Constitution,

[t]he governor shall appoint, with the advice and consent of the senate, . . . a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals[.]

Hochul, along with several of her allies, have argued that this provision obligates the full Senate to vote judicial nominees up or down.

Of course, if your memory extends to the mere six years ago that the U.S. Senate refused to act on then-Judge Merrick Garland’s nomination to the U.S. Supreme Court, you may recall that the U.S. Constitution similarly provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court[.]” Although a liberal political activist filed a lawsuit to force the Senate to vote on Garland’s nomination, this (unsurprisingly) did not compel the Senate to take action.

In New York, governors have been responsible for appointing members of the Court of Appeals—the state’s highest court, despite its confusing name—since 1977. Prior to that point, since the court’s creation in 1846, judges were elected in statewide partisan elections. As such, when vacancies occurred on the court, governors could temporarily fill those vacancies until the next regularly scheduled election. Though the Governor’s interim appointments were not originally subject to the advice and consent of the Senate under the 1846 Constitution, this was added in a 1869 amendment—and continued virtually unchanged with the adoption of the 1894 constitution and subsequent amendments in 1925 and 1961.

A 1977 amendment to the state constitution eliminated these judicial elections, instead creating the Commission on Judicial Nomination. When a vacancy occurs, the Commission screens prospective candidates and recommends a slate of nominees to the Governor, who must pick one and submit them to the Senate for consideration.

But nowhere in the constitution itself is there an affirmative requirement that the Senate hold a floor vote on a judicial nominee—at all or within a specific timeframe. If the drafters of the 1977 amendment wished to add a requirement like this, they certainly could have. Both the Hawaiʻi and Tennessee constitutions require their state senates to approve or reject a judicial within a set timeframe—30 days in Hawaiʻi and 60 days in Tennessee—with confirmation occurring “by default” if the senate fails to act within that timeframe. The Utah Constitution requires the State Senate to “consider and render a decision on each judicial appointment within 60 days of the date of appointment,” and “[i]f the Senate fails to approve the nomination, the office shall be considered vacant and a new nominating process shall commence.” And several more constitutions require the governor to make nominations within a set period of time before a backup selection process kicks in—like the Montana Constitution, which requires the Governor to make a nomination “within thirty days after receipt of nominees” from the nominating commission, and if they don’t, “the chief justice . . . shall make the appointment from the same nominees.”

Moreover, state courts are generally quite deferential to how legislatures conduct their operations. As long as a legislature is minimally meeting the state constitution’s requirements—the most common of which impose publication and printing requirements in some contexts, set certain voting thresholds to take certain action, et cetera—courts will generally defer to how the legislature acts.

There is no plausible argument that the text of the New York Constitution itself requires the full Senate to vote on Judge LaSalle’s nomination—none. There’s no specific text that can be pointed to, no court decision that can be identified, and no real legislative-intent argument. The argument that it does is really just suggesting that the use of “senate” when referring to “advice and consent” refers to the entire Senate, not just the Judiciary Committee—and beyond that, there’s no support for this bold, unprecedented idea.

There is, however, a plausible statutory argument that the Senate might be obligated to vote on LaSalle’s nomination. Section 68 of the state Judiciary Law provides:

The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor. A vacancy shall be deemed to occur upon the rejection by the senate of such an appointment.

This is the real crux of Hochul’s argument that, if the Senate fails to give LaSalle a floor vote, she’ll sue to force them to.

Color me skeptical that a court would force the Senate to hold a vote.

As a general matter, I’m unaware of any precedent—not just from New York, but any jurisdiction—that has actually obligated any chamber of a state legislature to take a vote in the absence of an explicit constitutional requirement. Statutes like section 68 seem pretty uncommon in the first place, and I’m not aware of a time that a similar statute has been successfully invoked to force a vote.

But, and more crucially, the process for nomination and consideration of judicial nominees—as articulated in Article VI of the state constitution—is complete. There’s a plausible argument that section 68, insofar as it scaffolds additional statutory requirements onto an already-complete constitutional process, is unconstitutional.

Courts have universally interpreted state senates’ “advice and consent” powers as discretionary—and as such, the decision by a state senate to not confirm a particular nominee is constitutionally permissible. The failure to give a governor’s nominee a hearing or an up-or-down vote is not unconstitutional, certainly does not deprive that person of due process, and usually does not even give them standing to sue.

Similarly, as mentioned earlier, courts generally defer to internal legislative procedures—including in New York. Where legislative practices go beyond their constitution’s procedures and actually run afoul of the state constitution, courts are more willing to step in. In King v. Cuomo, for example, the New York Court of Appeals struck down as unconstitutional a long-standing legislative practice that allowed the legislature to recall a piece of legislation that it had sent to the Governor. Because “the authority of the Legislature is ‘wholly derived from and dependent upon the Constitution,’” the legislature is limited in its ability to “substitute for or substantially alter the plain and precise terms of that primary source of governing authority.” The issue in King involved legislative rules, not statutes—but statutes can’t alter constitutional text, either.

Accordingly, I’m doubtful that the legislature has the power to statutorily add an additional procedural requirement to the state constitution’s process for filling judicial vacancies—especially one that materially alters the process itself. The New York State Senate is empowered by the state constitution to “determine the rules of its own proceedings.” If it determines, therefore, that it wishes to not advance a judicial nominee to a full floor vote because of an unfavorable report from the Judiciary Committee, that choice would be in line with its power to make its own rules—and to render “advice and consent” within the meaning of Article VI, section 2(e). So the addition of a new requirement—that regardless of the Senate’s rules, and regardless of how it wishes to exercise its advice-and-consent power, it is nonetheless obligated to provide a floor vote on the nominee—seems to pretty clearly contradict other constitutional provisions.

I don’t mean to suggest that there’s no world in which the New York Court of Appeals orders the State Senate to hold a floor vote on LaSalle’s nomination. It’s possible that the Court could enter the dispute in an “‘only in New York’ way” (as Professor Noah Rosenblum put it) and require a State Senate vote. But such a ruling would be unprecedented—and I do think quite unlikely—because of how invasive it would be in imposing an affirmative obligation on a state legislature to act in the absence of a clear constitutional requirement that it does so.

Of course, on the other hand, perhaps Hochul’s threat of a lawsuit is just puffery—and when the Judiciary Committee votes down LaSalle’s nomination tomorrow, she’ll finally yield to the pressure, rendering all of this a moot point.