Home / General / What’s the matter with New York? (Bad identity politics edition)

What’s the matter with New York? (Bad identity politics edition)

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Mark Joseph Stern and Alexander Sammon make a strong case that Kathy Hochul just made a massively consequential blunder with her nomination for the chief judge on New York’s top court:

When Chief Judge Janet DiFiore abruptly resigned from New York’s highest court in July, Democratic Gov. Kathy Hochul got the opportunity to reshape the bench, and to finally end the reign of the conservative majority. Hochul declared that she would seek a nominee who would transform the court into a progressive counterweight to the far-right U.S. Supreme Court.

On Thursday, however, she did the exact opposite, selecting Judge Hector LaSalle to serve as New York’s top judge. LaSalle is a former prosecutor with a conservative record against abortion, unions, and criminal defendants. If confirmed by the state Senate, he would entrench a reactionary majority that would fight tooth and nail against the priorities of New York progressives.

Right now, the state’s highest court—which is called the New York Court of Appeals—is sharply divided. DiFiore, the former chief judge, led a bloc of four conservatives that gained notoriety after invalidating Democrats’ congressional map and replacing it with a map favorable to Republicans. (This decision helped Republicans clinch their narrow majority in the House of Representatives.) When DiFiore stepped down due to an ethics scandal, she left the court split between three conservatives, two liberals, and one moderate. So the new chief judge could have either restored the court’s right-wing majority, sat at its ideological center, or led its left flank.

The Commission on Judicial Nomination gave Hochul seven options across the ideological spectrum, including several liberals. Yet she picked LaSalle, touting the fact that he’d be the first Latino chief judge while ignoring his alarming record. If confirmed, he is all but guaranteed to shore up the right-wing majority. His record as an intermediate appeals court judge demonstrates a deep hostility to the very values that Hochul claimed she wanted to uphold with this appointment. To give just a few examples:

• A decade ago, the New York attorney general launched an investigation into an anti-abortion “crisis pregnancy center” accused of practicing medicine without a license. In an extraordinary decision, LaSalle voted to shield the fake clinic from the probe. The ruling barred state investigators from reviewing “advertisements and promotional literature, brochures and pamphlets that the [center] provided or disseminated to the public” on First Amendment grounds—even though these documents were critical to determining whether the clinic falsely promoted its services as genuine medical care.

• To prevent corporations from harassing unions, New York law bars management from suing unions or union leaders in their official capacity. In 2015, however, LaSalle joined a shocking opinion that carved a massive loophole into this law, allowing Cablevision to sue union leaders for criticizing the company’s management response to Hurricane Sandy. The opinion rendered labor protections toothless, giving corporations an easy workaround until the Court of Appeals shut it down.

• In a 2014 ruling, LaSalle voted to prohibit a criminal defendant from appealing his conviction. The defendant claimed he was the victim of an illegal search, yet prosecutors persuaded him to sign an ambiguous, misleading waiver of his right to appeal. A trial court judge failed to tell the defendant the actual impact of this waiver. LaSalle thought that was fine—but the Court of Appeals later repudiated the decision, holding that a waiver of appeal can’t mischaracterize what rights are waived.

What’s remarkable about this string of decisions is that it aligns perfectly with SCOTUS’ current conservative agenda. The Supreme Court justices have recently shielded crisis pregnancy centers from legal scrutiny and, of course, overturned the constitutional right to abortion. In a string of 6–3 rulings, the majority has radically diminished the rights of criminal defendants using procedural tricks of the sort that LaSalle greenlighted. And at this moment, SCOTUS is on the brink of subjecting unions to ruinous fines under state law when they go on strike. New Yorkers can expect a Chief Judge LaSalle to vote in lockstep with SCOTUS’ agenda. That’s why a large group of left-leaning law professors in the state urged Hochul not to pick him for the spot. Progressive groups have already begun whipping opposition to the nominee.

The entire argument for LaSalle seems to be that he would be the first Latino in this position, so his markedly right-leaning jurisprudential inclinations aren’t a big deal.

That is a terrible argument, for reasons that should be too obvious to elaborate.

Why a deep blue state keeps electing dubious Democrats as governor and mayor of NYC is an interesting question.

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