“The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, 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.”
Gov. Kathy Hochul, former Chief Judge Jonathan Lippman and others have insisted that under the terms of Article VI, Section 2 (e) of the New York constitution, above, Justice Hector LaSalle — rejected in committee as a nominee for chief judge on the New York Court of Appeals — is entitled to a vote of the full Senate. They argue that no mere Senate rule can supersede this constitutional command.
I am not a former judge or constitutional scholar, but I did practice law for almost 40 years. In my day, if we wanted to interpret a provision of the U.S. or state constitution, we would certainly start with the text, but we wouldn't stop there. We would ask: What did the drafters mean by certain words and phrases, and how have those words and phrases been interpreted over the years?
Let’s start here: LaSalle’s boosters conveniently ignore another provision of the constitution, Article III, Section 9, which states: “Each house shall determine the rules of its own proceedings.” This suggests it isn’t constitution versus rule, as the literalists would have it, but two constitutional provisions seemingly in conflict.
But are they really? If one applies the basic canon of statutory construction that words and phrases in a single document must be interpreted in such a way as to give meaning to each, couldn’t the two provisions at issue be read to say the Senate must act on the governor’s chief judge nominee according to the procedures determined by the Senate?
Indeed, isn’t that the basic structure of the constitution? The Legislature is commanded to do certain tasks, and it is empowered to decide how it will accomplish those tasks. When the framers have wanted to limit the Legislature’s ability to answer the how question, the constitution does so explicitly. For example, most decisions are made by majority vote, thus protecting the majority party’s power to speak for the chamber. But in certain limited circumstances, the framers have demanded a supermajority vote, thus empowering the minority. One would think that had the framers intended the Court of Appeals clause to constrain the majority’s power to run its own house and to grant the minority a power it otherwise would not enjoy, they would have done so explicitly.
The phrase “by and with the advice and consent of the Senate” has its own history. It was used in the Appointments clauses of the U.S. Constitution in 1789 and has been included in the state constitution, at least in some limited form, since 1894. It is arguable that this clause has never been interpreted literally.
Let's just focus on the word “advice.” In common usage, “advice” means “recommendation” — something that is sought and given before a decision is made. Has a single president ever sought the advice of the Senate before nominating a Cabinet member or federal judge? Maybe a senator or two, but the entire Senate? Of course not. Likewise for New York governors: Any record of a governor asking for the Senate's advice before nominating an agency head? And if the “full Senate” construct is to be followed, is there even any mechanism to get the full Senate’s advice?
I think it fair to conclude that the usage of the phrase in question, which was inserted in the 1970s, was not to be taken literally, otherwise the drafters would have dropped the word “advice” from the formulation. Instead, the drafters lifted the phrase from Article V, Section 4 of the state constitution, where it had been in use since 1894. If we cannot give the phrase its literal meaning, it seems prudent to examine how the phrase has been interpreted over the decades.
Since 1894, has any gubernatorial commissioner nominee been rejected by the Senate without a full vote of the body? Of course. History is littered with would-be commissioners who have been voted down. In fact, until the recent dustup, no one had ever even suggested that the governor's pick for commissioner of transportation could bypass the Senate Transportation Committee and go straight to the Senate floor.
Oh, I can hear the objections: Those were mere commissioners; we are talking about the chief judge here. True but irrelevant: The phrase is identical in both sections of the constitution, and a first-year law student could tell you it must be interpreted consistently. Furthermore, if we are to divine the intentions of the 1970s drafters of the Court of Appeals clause, isn't it fair to assume they knew how the phrase had been interpreted in the past and, in using it without modification, had intended that same interpretation going forward?
So although it has a certain surface appeal, the “Senate means Senate” mantra isn’t quite as clear or compelling as its advocates would have us think.
Patrick Brown retired from the firm of Brown & Weinraub at the end of 2022.