Progressives erred on blocking chief judge nominee

Fifty years ago, I was sworn in as one of the seven elected judges of the state Court of Appeals. There was little public concern about whether a candidate was “conservative” or “progressive.” With judges being chosen in statewide elections, major party leaders made sure candidates were intelligent, experienced, and electable.

It wasn’t until 1974, 128 years after the Court of Appeals was created, that the first African American was seated. Not by election, but by appointment. Harold Stevens, a distinguished jurist then serving as presiding justice of the Appellate Division First Department, where he had authored an opinion ordering the preservation of Grand Central Terminal as a city landmark, was named to fill an interim one-year vacancy by Gov. Malcolm Wilson, a Republican. Stevens had come from a dirt-floor shack in Jim Crow South Carolina to become the highest-ranking Black state court judge in the nation. Today, Stevens would be considered “progressive” but he was not chosen for that reason — nor because he was Black. He was chosen because of his experience and proven excellence as a jurist.

Stevens later ran for a full term. Despite being endorsed by the Republican, Democratic, Liberal and Conservative parties, he lost a Democratic primary and then the general election, which reinforced the belief that New York voters were not ready to elect an African American to the Court of Appeals no matter how qualified.

As a direct cause of that rejection, the State Legislature passed, and voters approved, a constitutional amendment that the governor appoint judges to the Court of Appeals after a merit selection process by a nonpartisan Commission on Judicial Nomination. That allowed women, persons of color, and others to qualify for and be appointed to serve on our state’s highest court. And many have gotten that opportunity.

However, the Democratic-led State Senate Judiciary Committee has blown up that process. It voted, 10-9, not to send Gov. Kathy Hochul's nominee for chief judge, Justice Hector LaSalle, who would be the first Hispanic to serve in that role, to the full Senate for confirmation because he was “too conservative” — despite the Commission on Judicial Nomination finding him "highly qualified." 

The last time a Court of Appeals nomination was rejected was in 2013 when the Republican-led Judiciary Committee held that Gov. Andrew M. Cuomo's nominee, Jenny Rivera, a CUNY law professor, was “too liberal.” Fortunately, and properly, the Republican-controlled Senate allowed Rivera’s nomination to go to the Senate floor where she was confirmed.

"Progressive" senators and organizations predicated their appraisal of LaSalle on a grotesque mischaracterization of his judicial record and his role as a former prosecutor. Hochul should use whatever legal means available to compel the Senate to take a floor vote. If LaSalle is denied that, the State Senate will have destroyed both the nonpolitical bone fides of the Court of Appeals and the merit selection process that has served the state and court so well.

“Progressives” who think that political partisanship or agendas should provide a criterion for judicial selection should follow what is happening in Wisconsin where judicial candidates are now raising millions of dollars to campaign on issues like abortion, redistricting, same-sex marriage, and the Affordable Care Act. The final word on these subjects will no longer be given by the executive and legislative branches but rather by the seven elected members of the Wisconsin Supreme Court.

Those who want any judge, no less the chief judge, to interpret statutes to favor any particular ideology or class invite the abuse of judicial authority. The excessive partisanship we now witness can lead to a tyranny where legislative decisions are predicated on populist notions of “law and order” or “defund the police.” That kind of bumper-sticker mentality may be politically expedient, but should never play a part in selecting our next chief judge. 

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.