INTERVIEW: Prejudging the Judge

By Reuvain Borchardt

New York Secretary of State Robert J. Rodriguez at the Hamodia office, discussing Gov. Kathy Hochul’s nomination of Justice Hector LaSalle to the position of chief judge of the Court of Appeals. (Reuvain Borchardt/Hamodia)

New York State Secretary of State Robert J. Rodriguez visited the Hamodia office to speak with editors Reuvain Borchardt and Avraham Y. Heschel about Gov. Kathy Hochul’s nomination of Appellate Division Justice Hector LaSalle to the position of chief judge of the Court of Appeals, the state’s highest court.

Progressive Democratic legislators have opposed LaSalle’s nomination, because LaSalle previously worked as a prosecutor (in the offices of the Suffolk County District Attorney and New York State Attorney General), and because of judicial rulings by LaSalle that they say question his commitment to labor and to women’s rights.

While the secretary of state has no formal role in judicial nominations, Rodriguez is one of the Hochul allies promoting LaSalle’s candidacy ahead of the state Senate Judiciary Committee confirmation hearings scheduled to begin Wednesday.

Candidates for the Court of Appeals are nominated by the governor and must be confirmed by the state Senate. The governor’s nomination is made from a list of candidates put forward by the state judicial nominating commission, whose membership is selected by the governor, the chief judge of the Court of Appeals, and Legislature leadership.

“We have put forward a really exceptional candidate,” Rodriguez said in the Hamodia interview. “Having … been a judge for almost 14 years, he’s got almost 5,000 decisions, and opponents of that are pointing at a handful of decisions to jump to conclusions that are not substantiated in the decisions … A fair-minded, impartial judge who’s done the work and has the experience usually gets confirmed without a problem, but in this instance, what we’re seeing is a significant amount of resistance by a group of opponents. And we want to make sure that people … respect the work that the judge has done and the pick that the governor has put forward, and will mobilize to ensure that the Senate gives him the confirmation hearing he deserves, and ultimately confirms him through a vote on the floor.”

One case progressives are citing is a ruling LaSalle made on whether a pro-life center’s records could be subpoenaed. “The judge said that most of these were permissible except for these two that are against the First Amendment,” Rodriguez says, calling it “a very technical decision about documents and First Amendment” that is inaccurately being portrayed as LaSalle taking a pro-life position.

The interview has been edited for length and clarity.

Progressives are concerned about a ruling by Justice LaSalle that they say is anti-union, in a case in which LaSalle ruled a defamation suit by an employer could proceed against union leaders. Can you address that?

There were two cases that were brought forward against the union, one that was ultimately dismissed, that said, no, you could not move forward on a case while a union official is in their union capacity. If they’re working under that capacity, they can take certain actions which are permissible.

There was another case that went forward and says that they could be held responsible for what they said as individuals, and that was allowed to move forward, because the law that was previously passed says that you are able to take individuals and hold them accountable for their actions separate from their jobs. So all he did was uphold the law and maintain the precedent of the courts.

And so, you could argue, on one hand, it was favorable to the union, and on the other hand, the second case was not. But that is a signal of how fair he treated the process, following the law and making sure that he was impartial in terms of how he allowed that to move forward.

Justice Hector D. LaSalle. (Office of Gov. Hochul via AP)

So you feel that the criticisms of LaSalle are coming from people who are outcome-focused rather than focusing on what the law actually is in the particular case.

That’s absolutely correct. People entered this process with a predisposition to have a particular kind of judge, one that they believed should not be a prosecutor.

We followed an independent process, which is in the law. This independent screening panel comes up with a list of candidates. Justice LaSalle was one of the most highly qualified and highly rated candidates, and certainly, we chose to move ahead, even though he was a former prosecutor. And I like to remind folks, [liberal U.S. Supreme Court Justice Sonia Sotomayor] was a former prosecutor.

We know that they can both uphold the law and be fair and impartial in their roles. And we certainly wouldn’t discriminate against people who are also sworn to uphold the law in their jobs as prosecutors.

The Legislature obviously has an important role in confirming judges. But some would argue that that role really is to see that the judge is qualified. We’ve seen increasingly on the federal level, and obviously it’s happening in the state as well, that instead of ascertaining the legal qualifications, level of analysis, etc., it’s the political opinions that are being pushed — on both sides of the aisle. In your opinion, how important are the political opinions of a judge, as opposed to their legal acumen?

We spent decades trying to separate the political process in the selection of chief judges and other justices. That’s why there’s an entire law governing the process and how it has to go through this independent commission.

We get to this point, where we really are politicizing the issue, we’re not even judging the justice’s entire body of work. And what we also have seen is it’s unprecedented where you would have senators saying they are going to vote against him without even having heard or gone through a hearing.

So I think what we are seeing is a politicization of the process, one that is highly concerning to the legal community — Bar associations, Jewish Bar Association, all of the affinity group associations have come out and said he should have a hearing, this is not the process, it should not be political. And by the way, his record is being completely mischaracterized in this process; he should be given fair consideration, and be confirmed. We’ve heard that from so many different groups in the legal community, including Judge Lippman [former chief judge of the Court of Appeals], whom we have a lot of respect for. So I think it’s very important that people recognize that it’s not just about Justice LaSalle; this process is being changed completely from the way it has worked for decades.

There are 14 senators on the record saying that they oppose the nomination.

But he should get a vote of the entire Senate. It should not be allowed for a select few committee members who are opposed to be able to take over the committee and not give him the full consideration of the entire Senate.

LaSalle would be the first Latino chief judge of the Court of Appeals. Do you feel that’s significant? Some LaSalle supporters are making the argument that it’s wrong to oppose someone who would be the first Latino chief judge.

Yes, it has great historical significance, but I think what is more significant is the level of qualification that he has. I think even amongst opponents, not one of them has said, “Well, he’s not qualified,” or, “He doesn’t have the administrative experience.” Because I think it’s clearly demonstrated by his current role.

We certainly wouldn’t want to be a first if we didn’t also have the candidate be so highly qualified.

Two years ago, [then-Gov. Andrew Cuomo] appointed another judge, with no fanfare, no issues, you know, and because of that, now, senators feel that the court is too conservative. To try to fix that mistake on the back of the first Latino justice, who is highly qualified and doing the job, I think is unfair.

Do you feel it would be accurate to characterize Justice LaSalle as a progressive? Or is he not a progressive?

I think if you were going to fairly characterize him, he’s a moderate judge who takes each case with thoughtfulness and impartiality. I don’t see how you look at his body of work and come to the conclusion that he is conservative.

Recently, the Court of Appeals, whose members have been nominated by Democratic governors, issued a ruling in a major redistricting case that was favorable to Republicans. Do you feel that ruling is causing progressives to take a hard line with this nomination, saying, “We have to make sure something like that never happens again on this court?”

Yes, they have been forthcoming about saying that that’s their issue and they don’t want that to continue, and they are projecting that Judstice LaSalle is going to be continuing that trend. And I think that’s an unfair projection, when you haven’t even given him a hearing. You haven’t even reviewed his body of work and given him an opportunity to defend it. So I think they’re trying to fix past mistakes at the expense of Justice LaSalle’s nomination. And that’s what we’re asking the full Senate to review and vote on. And ultimately, we think we’ll get confirmed on that basis.

Many New Yorkers may not know exactly what the Secretary of State does. Tell us a little about your position.

The Secretary of State is responsible for running the Department of State, which licenses 38 different professions including real-estate brokers, real-estate salespeople, home inspectors, security guards, notaries, appearance enhancement — which include barber shops and hairdressers. We also have the Office of Consumer Protection, the Office of New Americans, and the Office of Planning, Development and Community Infrastructure. We also support building codes and cemeteries.

Do you have any role in the election process?

In New York State, the Secretary of State does not have any role in elections.

So I guess you won’t be secretly recording any phone calls with Trump.

We are one of the few states where we have no role. The Board of Elections takes on those responsibilities.

Any final comments?

I think the important thing is making sure that folks understand [the judicial confirmation] isn’t just a Latino issue. It doesn’t impact just one community. It really impacts the future of the judiciary in the state of New York and really, in order to make sure that this process is maintained, it requires a broad coalition that is not of any one ethnicity.

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