Case deadlocks appear to rise as hunt for NY chief judge pushes into spring 

ALBANY — New York will not have a new chief judge until mid-spring, as Gov. Kathy Hochul — stung by the Senate rejection of her initial nominee — has said she’ll wait until after the state budget is settled to nominate someone new.

Meanwhile, because of the vacancy, the Court of Appeals has been hearing cases with just six judges for months — and the list of apparently deadlocked cases (3-3) is growing.

Five times since September, the court has announced that a case must be scheduled for “reargument.” Court analysts and a former judge said this most likely means the six judges were evenly split and couldn’t issue a ruling, although the court doesn’t explicitly say so.

Five might sound like a small number, but experts said it’s unusual for cases to stack up like that at the court.

It’s all part of an unusual stretch for New York’s third branch of government, which usually flies below the headlines generated by the governor and State Legislature.

The state has been without a chief judge since the end of August, when Janet DiFiore stepped down from the Court of Appeals, New York’s highest court.

Hochul in November received a list of seven candidates to replace DiFiore — a list generated by a judicial screening panel, per state law. In December, the governor nominated Hector LaSalle — an announcement met with swift and vocal opposition by progressive Democrats, some leading labor unions and some abortion-rights groups.

After a lengthy public struggle, the Democratic-led State Senate rejected LaSalle, 39-20, dealing Hochul her biggest political blow since taking office in August 2021.

It marked the first time in state history a governor’s choice had been defeated since New York moved from elected to appointed judges on the Court of Appeals in the mid-1970s.

Now, it’s back to the drawing board for the governor.

The screening panel is accepting nominations through Tuesday, then will take a few weeks to sort through dozens of applicants and forward another seven names to Hochul.

The state budget is due April 1, which means the judicial selection process is assured of pushing past that date.

The governor has said she won’t approach this nomination any differently.

“I will always do what I did before and will do in the future, and that is select the person that I think will be the best individual, the best person, to lead an extraordinary court,” Hochul said at a recent event to tout her proposed state budget.

But as a “practical matter,” the Commission on Judicial Nomination, which screens and creates the nomination list for the governor, and Hochul are bound to be influenced by LaSalle’s defeat, said Vincent Bonventre, a professor at the Albany Law School of Union University. It's also likely to affect who applies for the post.

The Democrats who lead the Senate deemed LaSalle — a midlevel appellate judge from East Northport — too conservative. Further, they said they’re looking for new direction at the court, where prosecutors fared far better than defendants during DiFiore’s tenure compared with her predecessor, and the court’s caseload dropped dramatically.

“As a practical matter, the commission has to be aware of the fact that the Senate isn’t going to confirm any that’s less progressive than LaSalle,” Bonventre said. “Should the commissioners take that into account? As a practical matter, I don’t know how you can ignore it.”

Meanwhile, a block away from the State Capitol, the ongoing vacancy can affect the Court of Appeals in many ways, said Jonathan Lippman, a former chief judge.

“There can be cases that can’t be decided. And it changes the dynamic on cases that can be decided — you’re forced to compromise to a get a resolution,” Lippman told Newsday. “It changes the dynamic for the worse, I think. It’s not the normal process. … You sometimes have to water down decisions just to be able to get to four votes.”

When a case is scheduled for reargument, the Court of Appeals can “vouch” in a judge from a midlevel appellate court to temporarily give it seven members and can reach a majority decision. It's a quick fix, but it's not ideal.

With Hochul not likely to nominate someone until mid-April, a Senate confirmation vote could be put off until mid-May. One thing that will be different is the Senate Judiciary Committee might not hold up the nominee as it did LaSalle.

The committee voted against LaSalle and had refused to advance his nomination for a full Senate vote. But Republicans filed a lawsuit, resulting in a state judge ruling that the constitution — which requires the “advice and consent of the Senate” for court nominees — orders a full Senate on a governor’s nominee for the court. Senate Democrats have yet to appeal that ruling and are unlikely to do so, sources said.

By Yancey Roy

yancey.roy@newsday.com@yanceyroy