Gov. Hochul wants to streamline chief judge selection process

April 5, 2023 Robert Abruzzese

New York Governor Kathy Hochul.
Photo: Hans Penink/AP.

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STATEWIDE — State legislators finalized a bill on Friday that would simplify the process for Gov. Kathy Hochul to fill vacancies on the state’s highest court.

Hochul stated that the measure provides more flexibility in selecting a nominee for the open chief judge position, possibly from the current court. However, Republicans have not ruled out legal action.

The bill aims to address the filling of vacancies on the state Court of Appeals and streamline the process. If the governor nominates a sitting justice as chief judge, a nominee for that justice’s seat can be chosen from an existing list of potential candidates. This would bypass the current procedure, which requires the judicial nominating panel to select a new slate of candidates.

“This creates options. It doesn’t lock us into a decision at all,” Hochul said. “This gives maximum options to have us move more quickly if we choose to, because otherwise we’re going to end up with almost a year of having a split court, 3 to 3, on many decisions. And that’s not going to serve the people of New York.”

The chief judge position has been vacant since summer, and Hochul’s previous nomination, Hon. Hector LaSalle, the current presiding justice of the Appellate Division, Second Judicial Department, was rejected by the Democratic-led state Senate. Justice LaSalle’s rejection was the first time a chief judge’s nomination was rejected in the State. The previous chief judge, Hon. Janet DiFiore, was unanimously confirmed during the same process.

The bill’s introduction has led to speculation that Hochul may select an existing court member. The governor believes the bill offers more options and prevents a split court.

The measure was approved in the state Senate on Thursday and in the Assembly on Friday. It now moves to Hochul’s desk for her expected signature. However, Republicans, including Senate Minority Leader Robert Ortt, have criticized the plan and are considering legal action. Hochul maintains that the bill is constitutional.

Several judicial organizations and attorneys argue that the bill could limit opportunities for underrepresented racial or ethnic groups within the state’s legal and judicial community. The current list of recommended candidates does not include a Latino or Asian American candidate, two groups that are among the least represented within the state’s judiciary.

Mary Farley, the president of the Association of Justices of the Supreme Court of the State of New York, urged Assembly Speaker Carl Heastie to pause the bill’s calendering to allow time for a thorough analysis of its impacts on New York’s highest court. However, the request was not honored, and the Assembly passed the bill.

Ali Najmi, an election and criminal defense attorney, believes the bill may run afoul of the state’s constitution, which could open the governor and legislature to a lawsuit. Nonetheless, Governor Hochul defended the bill’s legality, saying it is constitutional and only provides her with more options to fill the vacancies quickly.

Despite the concerns, many senators who opposed Hochul’s previous nomination of Hector LaSalle voted in favor of the bill, with only two Democrats opposing its passage.

Gov. Hochul has to select the State’s next chief judge from a list of seven candidates that were submitted to her by the Commission on Judicial Nominations.

Those seven candidates include: Justice Anthony Cannataro, the acting chief judge of the Court of Appeals; Justice Shirley Troutman and Justice Rowan Wilson, both currently serving on the state’s highest bench; appellate court judges Hon. Elizabeth Garry, the presiding justice of the 3rd Appellate Division, and Hon. Gerald Whalen, the presiding justice of the 4th Appellate Division; Caitlin Halligan, a lawyer and former general counsel for the Manhattan district attorney’s office who also served as solicitor general for the state from 2001 to 2007; and Corey Stoughton, an attorney with The Legal Aid Society.

Gov. Hochul has 30 days to choose a nominee from that list, which was submitted at the end of March. Once she selects one of the jurists, the State Senate then has to approve their selection.