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State Senate Majority Leader Andrea Stewart-Cousins holds a press conference at her offices on Tuesday at the Capitol in Albany. The leader took questions on the Court of Appeals nomination of Justice Hector D. LaSalle.
Will Waldron/Times Union
ALBANY — There is a possibility the state Senate will hold a floor vote to consider the nomination of Appellate Division Justice Hector D. LaSalle as the chief judge of the Court of Appeals after Senate Majority Leader Andrea Stewart-Cousins softened her stance Tuesday at a time her conference faces a lawsuit filed by Republicans that seeks to force the matter.
Stewart-Cousins told reporters that the Democratic supermajority conference is "talking about our options" on its next steps in response to a lawsuit filed by state Sen. Anthony H. Palumbo, the ranking member of the Senate Judiciary Committee.
A hearing on the constitutional question — whether a nomination to the Court of Appeals by the governor is entitled to a vote before the full Senate regardless of the internal rules of the Senate — is scheduled for Friday in the state Supreme Court in Suffolk County. The lawsuit was filed Thursday by Palumbo, a Long Island Republican, who requested the case be expedited by the court.
The litigation follows the Senate Judiciary Committee's 10-9 vote last month against advancing LaSalle, Gov. Kathy Hochul's nominee for chief judge, to the full Senate for a vote. It marked the first time the Senate committee had rejected a Court of Appeals nominee by a governor since it switched to a "merit" selection of judges in 1977, following a ballot referendum.
Senate Democrats swiftly declared the nomination was "lost" and the conference had "rejected" LaSalle, fulfilling its constitutional obligation to provide "advice and consent of the Senate" on a governor's pick for chief judge. They deflected questions on a potential lawsuit to force a floor vote, an issue that had been bubbling over in the days ahead of the committee hearing.
Democratic Senate leadership had asserted it should not bring the nomination to the floor even though they maintained LaSalle would be rejected if he was to face the floor vote.
"The Senate has an institutional prerogative at stake," Judiciary Committee Chairman Brad Hoylman-Sigal, D-Manhattan, said after the Jan. 18 hearing when asked why they would not bring the nomination to the floor. "The separation of powers is a valid concern for anyone serving in a branch of government and to cede that simply for the benefit of moving the process along, I think would be mistaken as well."
Stewart-Cousins, later in the day, said they would not bring LaSalle's nomination to the floor, "because we have rules." She pointed to the fact that only items that advance through committee go to the floor, based on their adopted rules.
"It’s not a matter of trying to avoid; it’s a matter of actually respecting the rules," Stewart-Cousins had said. "The (state) constitution empowers us to make rules and so we adhere to them."
Nearly a month later, as the nomination is swirling at a time when budget negotiations are a priority, Stewart-Cousins acknowledged they are in "uncharted territory" and are going to figure out the best path forward. She pointed to a need to negotiate the budget and tackle big issues, including housing, public safety and education.
"We’re not talking about the budget. We’re talking about a nominee," Stewart-Cousins said. "It is certainly a concern. We’re looking at all the implications."
WAMC on Tuesday previewed a segment of an interview with Hochul that is scheduled to air in full on Thursday.
"I know he would have been an extraordinary judge and he is still in the running," Hochul told host Alan S. Chartock, referring to her legal view that a full Senate vote is required. "This is what I’m hanging my hat on."
Hochul said her administration will avoid engaging in the lawsuit while it remains in the lower court. She said the matter could end up in the Court of Appeals, "and so we have other opportunities to weigh in if we choose."
The governor said she still would like to see the Senate bring the nomination to the floor for a vote.
"The Senate can act on it any day they want," Hochul said. "What the Republicans did was force that issue now. So we’ll wait and see what the courts will do."
Despite initial reports that Hochul was seeking counsel for potential litigation, her administration has not filed any contracts for outside legal support with the state comptroller's office.
In response to Palumbo's lawsuit, the Senate majority retained counsel with the law firm Emery Celli Brinckerhoff Abady Ward & Maazel, according to court records. The comptroller's office did not immediately provide a copy of that contract.
Among the attorneys on the case for the Democrats is Andrew G. Celli, Jr., who served as lead counsel on civil rights to former state Attorney General Eliot Spitzer. He also represented Spitzer on other matters. Celli also represented former Senate Majority Leader Malcolm Smith during the 2009 political coup, in which Smith lost leadership of the chamber.