New York's independent  judiciary is under threat

Those of us who believe that an independent judiciary is the heart of a just society are troubled that Gov. Kathy Hochul is “negotiating” with the New York State Senate on the appointment of Court of Appeals judges and is seeking to make changes in the long-established nonpartisan selection process. Those appointments should be based on criteria and methods established by our Constitution, not on a political and self-serving ideology adopted by majority members of the Senate to secure a permanent foothold on their reelection.

This latest imbroglio was set up in February when Hochul's choice for chief judge, Hector LaSalle, was rejected by the Senate. The bipartisan Commission on Judicial Nomination has delivered a second list of seven names for her next chief judge nomination. The governor is charged with making the nomination, but the Senate is required to give its “advice and consent.”

LaSalle's nomination was torpedoed over a failed election redistricting attempt. Self-styled “progressive” groups worked hard to amend our state Constitution in 2014 to make sure no political party could achieve a partisan advantage by gerrymandering election maps. The constitutional amendment set procedures and standards to be followed. However, the new Democratic supermajority in the State Senate chose to ignore those constitutional mandates, which resulted in the Court of Appeals rejecting the “unconstitutionally gerrymandered” election maps.

Then, deputy majority leader Sen. Michael Gianaris, who helped fashion those unconstitutional maps, had an epiphany. Sens. Gianaris and Brad Hoylman-Sigal, chairman of the Senate Judiciary Committee, not only denounced those jurists who voted to reject the Senate’s maps, they also served notice that no Court of Appeals judge who voted with the majority would be confirmed by the Senate as the next chief judge.

This would result in the end of our “merit selection” system. Indeed, every trial or appellate judge who seeks advancement within New York’s judiciary and rules in favor of a landlord’s eviction of a tenant, or sets bail, or decides a case based on precedent deemed anti-labor, or has ever been endorsed by the Conservative Party, or has ever served in a prosecutor’s office, has been put on notice by our “progressive” State Senate that their hopes for judicial promotion depend not on their abilities or administrative skills, but on how their judicial record is rated by “progressive groups” and the State Senate majority. As Sen. Gianaris put it, he only wants Court of Appeals judges whose thinking is “more in line with the values of the majority of the Senate.”

This is the very antithesis of an independent judiciary.

Seeing what is happening in other states whose highest-ranking justices are elected should raise a red flag for New York “progressives.” There may come a time when New Yorkers accept opposing arguments that by protecting tenants and stabilizing rents "progressive" legislators are creating undue hardship for landlords leading to a housing shortage, or that enactments intended to be “just” to defendants in criminal prosecutions are letting dangerous people loose on our streets.

One day those who agree with those “conservative” sentiments could elect the majority members of our State Senate. When that happens, “New York values” will become what the new “conservative” Senate says they are, and new Court of Appeals judges will only be confirmed if they are “conservative” and their thinking is “more in line with the values of the majority" of this new Senate.

This guest essay reflects the views of Sol Wachtler, former chief judge of the New York State Court of Appeals and distinguished adjunct professor at Touro Law School.