Most folks know by now that the N.Y. Senate Judiciary Committee refused to report out Justice Hector LaSalle’s nomination for full Senate consideration. And there’s been some talk of Governor Hochul retaining Caitlin Halligan to sue the Senate on the theory that committee consideration alone is not sufficient to discharge the Senate’s constitutional obligation to advise and consent on LaSalle’s nomination. We looked around and tried to collect the most thoughtful discussion the Governor’s litigation options.
- Common Cause was quick to argue that the Constitution does not require a full Senate vote.
- Professor Noah Rosenblum appears to be the most vocal advocate amplifying the dim view of the litigation option. He points to the threshold issues that a lawsuit would raise and amplifies the argument that the Constitution does not require full Senate consideration; he also has questioned what inter-institutional enforcement would look like in this context.
- Rob Rosborough raised a lot of the same questions early over at NY Appeals, detailing the three options—litigation, withdrawal, or reselection—that he sees available to the Governor. He thinks litigation is “definitely not the best option” but points out that the other options involve “accepting political defeat and moving on with a new nomination.” He concludes that the choice is “[t]hankfully” one that’s not his to make.
- Over at City and State, Peter Sterne recounts Rob and Noah’s views and contrasts them with the views of the person increasingly being held up as the main proponent of the opposing camp, former Chief Judge Jonathan Lippman. He adds that the “strongest reason for the governor not to sue the Senate may be because even if she were to win a lawsuit, and the Senate agreed to hold a floor vote on LaSalle’s nomination, her nominee would probably still be rejected.”
- In its analysis of the question, the Times Union collects other notable proponents of the view that the Constitution requires a full Senate vote, including former AD1 Justice Jim McGuire (counsel for Governor Pataki during the Silver v. Pataki litigation) and Albany Law School Professor (and noted NYCA watcher) Vin Bonventre.
- Jerry Goldfeder, an election law expert at Stroock, also argues that a full Senate vote is required. He points out that legislative reliance on internal rules may not do the work that lawmakers claim it does, since the Senate rules do not self-evidently give the Judiciary Committee authority to definitively reject a nomination.
- In what we think is the most interesting (albeit brief) amplification of this side of the argument, Asher Stockler drops a little constitutional history about the origin of the “advise and consent” provision during the 1821 convention. This teaser is catnip for us. If you’re interested in cite-checking Asher (and have the time to do it), don’t forget about our “Resources” page that collects the relevant constitutional history resources.
As usual, we try to be comprehensive. But if there’s commentary out there that you think we’ve missed, please pass it along. Or create it!
Posted on 2023-01-21.