Republicans are suing the New York State Senate to force a vote on Hector LaSalle—with embarrassingly weak arguments
If these are really the best available arguments, this lawsuit is in trouble.
On Thursday, February 9, New York State Senator Anthony Palumbo, the ranking Republican on the Senate Judiciary Committee, filed a lawsuit in Suffolk County against the State Senate for its failure to hold a floor vote on Hector LaSalle’s nomination to the New York Court of Appeals.
Several weeks ago, I wrote about the constitutional arguments that Governor Kathy Hochul has made to support her claim that the State Senate is constitutionally obligated to vote LaSalle’s nomination up or down. In short, the arguments are weak, and largely just consist of repeating the phrase “advice and consent” ad nauseum without any meaningful attempt to grapple with the 250-year history of what those words have meant in the United States. Since that piece, Hochul’s arguments have gotten no better. In a recent television interview, Hochul said:
I read the constitution very clearly. It says the Governor names an individual to lead the courts with the advice and consent of the senate. The word senate is very clear to me.
In any event, before a lawsuit was filed, all that anyone could do was talk about the hypothetical arguments that might be made. Now that Senator Palumbo has filed a lawsuit, we have the chance to look at the actual arguments.
My immediate reaction: Really? Are these the best arguments available?
I don’t mean to suggest that there’s zero chance that a judge would buy these arguments—or that they won’t ultimately (and inexplicably) prevail. But Palumbo’s arguments are incredibly weak; undermine themselves repeatedly; and do nothing to make the case that the state courts ought to adopt a new, radical conceptualization of the phrase “advice and consent.” As Mike Murphy, the Communications Director for the State Senate Democrats, said, “It is embarrassing but not surprising that the Senate Republicans have no basic understanding of law or the constitution.”
So let’s dig in.
Palumbo’s first set of arguments focus on the language of the New York Constitution’s judiciary article. He notes that the relevant provisions “are replete with mandatory language.” For example:
the commission “shall consist of twelve members” who shall be appointed by specific appointing authorities, (d)(1) (emphasis added); whenever a vacancy occurs, “the commission shall consider the qualifications of candidates and . . . shall prepare a written report and recommend to the governor persons who are well qualified,” (d)(4) (emphasis added); and “[t]he Governor shall appoint, with the advice and consent of the Senate, from among those recommended by the judicial nominating commission . . . whenever a vacancy occurs in the court of appeals,” (e) (emphasis added).
Moreover, in the context of making interim appointments to fill vacancies, he argues that there are mandatory provisions here, too. Specifically, Article VI, Section 2(f) provides:
When a vacancy occurs in the office of chief judge or associate judge of the court of appeals and the senate is not in session to give its advice and consent to an appointment to fill the vacancy, the governor shall fill the vacancy by interim appointment upon the recommendation of a commission on judicial nomination as provided in this section. An interim appointment shall continue until the senate shall pass upon the governor’s selection.
(emphasis added).
He points to the word “shall” here, arguing: “the Senate is required to act upon that interim appointment.”
It’s true that many provisions in the article include the word “shall,” which suggests that they are mandatory. New York state courts generally treat the word “shall,” when it’s in the constitution, as mandatory.
But note where the word “shall” doesn’t appear—the reference to “advice and consent” of the Senate with respect to regular nominees. The word “shall” modifies the Governor’s appointment of judicial nominees (“The Governor shall appoint”) but not the Senate’s consideration of those nominees (“with the advice and consent of the Senate”). If the drafters of this provision had wanted to include a mandatory duty on the Senate’s part to vote all judicial nominees up or down, they could’ve done so. As I’ve explained previously, the Hawai’i, Tennessee, and Utah constitutions all include mandatory language:
“If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment.” Hawai’i Constitution, Article VI, Section 3 (link).
“Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session[.]” Tennessee Constitution, Article VI, Section 3 (link).
“The Senate shall consider and render a decision on each judicial appointment within 60 days of the date of appointment. . . . If the Senate fails to approve the appointment, the office shall be considered vacant and a new nominating process shall commence.” Utah Constitution, Article VIII, Section 8 (link).
(Note, though, that there’s no case from those states actually compelling the State Senate to hold a vote.)
Palumbo’s argument—that the judiciary article is “replete with mandatory language”—undermines his position here. Given that the word “shall” is used in so many places, its absence from the Senate’s exercise of its “advice and consent” power is conspicuous.
Its absence is even more conspicuous when you consider that the word “shall” is used when referring to the Senate’s consideration of a Governor’s interim appointee—but not with respect to its consideration of a regular appointee.
He anticipates this argument, and responds, “It would be unreasonable for interim appointments to require a floor vote where an in-session appointment would not.” Accordingly, to “reconcile the two provisions”—first, the requirement of “advice and consent”; second the requirement that the Senate hold a vote on governors’ interim appointees—”an in-session appointment must also require a floor vote.”
I’m not sure that would be unreasonable. Under the provision of the Constitution allowing for the Governor to make interim appointees, the appointee serves unless and until the Senate votes no. If that happens, the appointee’s term is over. On the other hand, if the Senate votes yes, the interim appointee serves a full fourteen-year term. In that context, it would make sense to require a Senate vote—because in the absence of Senate action, the interim appointee could (theoretically) serve in perpetuity without a vote. But in the context of a regular nominee, there’s no risk of their serving without the Senate’s advice and consent.
In the end, there is literally no textual argument that the state constitution’s reference to “advice and consent” requires the full Senate to hold a floor vote. To believe that it does would be to believe that the drafters of the 1977 constitutional amendment creating the current version of the judiciary article used a phrase—“advice and consent”—with a commonly understood meaning in the U.S. Constitution and every state constitution and added a new meaning to that phrase without changing the language. And, of course, that they did all of this without saying anything publicly to that effect.
Palumbo’s next argument is that the Constitution requires the Court of Appeals to have seven judges—and that this “requirement . . . would also be imperiled if a Senate committee were free to deny the Governor’s nominee a floor vote on a whim.”
I’d expect a first-year law student—no, a first-day law student—to make an argument like this. Yes, the Constitution requires seven judges. If the phrase “advice and consent” is interpreted to mean that the Senate must vote judicial nominees up or down because anything else would deprive the Court of its full membership, then that blows up the entire idea of “advice and consent.” Wouldn’t that also obligate the Senate to only confirm nominees? You could make Palumbo’s exact same argument if the Senate repeatedly rejected a Governor’s nominees in full floor votes: “The constitutional requirement of seven judges would also be imperiled if” the full Senate were free to deny the Governor’s nominees “on a whim.”
He also points to historical practice—that, since “Article VI was adopted more than forty-five years ago, the Senate has held a floor vote to confirm or reject every single nomination made by a governor, regardless of whether the Senate was controlled by the same party to which the governor belonged.” The argument that Palumbo is grasping at is akin to the concept of constitutional liquidation, an idea that James Madison explored in Federalist 37, which Professor William Baude explained several years ago. But he doesn’t develop the idea—and in any event, 45 years is far too short a time to argue that a practice has been constitutionally liquidated. One could have made the same argument about Merrick Garland’s failed nomination to the Supreme Court—that it was virtually without precedent for the Senate Judiciary Committee to flat-out refuse to hold a nomination hearing on a Supreme Court nominee.
Finally, Palumbo points to the Judiciary Law, Section 68 of which, as I acknowledged before, ostensibly requires the full State Senate to “confirm or reject” the Governor’s nominees “no later than thirty days” after the nomination is made. Palumbo, again, doesn’t develop this argument—he just plops and drops it.
There are many good reasons, as I explained before, why this law is very possibly unconstitutional. To believe that Section 68’s requirement of a vote within thirty days of the nomination is constitutional, you have to agree that the “advice and consent” provision in the state constitution actually requires the Senate to cast a vote. If it doesn’t, Section 68 adds a new, extra-constitutional requirement onto the “advice and consent” process. Courts are extraordinarily deferential to legislative bodies’ powers to determine their own rules of procedure—which are safeguarded by virtually every state constitution. Attempts to force votes or other legislative action are almost uniformly rejected unless the constitution actually requires that action—for example, Colorado’s constitution explicitly requires that legislative committees schedule votes on the merits for every piece of legislation that’s introduced, and the state courts have indeed enforced that provision.
In the absence of an affirmative requirement, it strains credulity to suggest that the legislature and Governor could statutorily modify the constitutional process for considering judicial nominees. The Senate is empowered to exercise its “advice and consent” powers however it wants under its rules—and even if it were to violates its internal rules, courts are generally quite wary about overruling a legislative body’s determination about its own rules. If the legislature could scaffold on new statutory requirements for the confirmation process, the constitutional text would be obliterated. And if we care about historical practice—and Palumbo seems to—then it might also be relevant to note that former Chief Judge Janet DiFiore was confirmed by the Senate 21 days after this deadline.
And that’s it. To sum up, Palumbo gestures vaguely at the “advice and consent” requirement; successfully proves that the phrase “shall” appears almost everywhere in the judiciary article except with respect to the Senate’s “advice and consent” powers; and points to the Judiciary Law’s quite-possibly unconstitutional requirement of a clear timeline.
Again, I can’t possibly speculate as to what a start court would do here. And, of course, even if Palumbo gets his way, I can’t imagine that Senate Democrats will respond favorably to being ordered to vote on LaSalle’s nomination after a Republican State Senator filed a lawsuit to do so. So this may all be for nothing.