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New York still doesn’t have a chief judge, more than six months after DiFiore resigned

Gov. Kathy Hochul talks about her next choice for the state's chief judge during an interview with public radio on March 30, 2023.
Peter Wendler
/
WCNY
Gov. Kathy Hochul talks about her next choice for the state's chief judge during an interview with public radio on March 30, 2023.

More than six months after the state’s chief judge resigned, New York still does not have a replacement — and it could be some time yet before that happens.

In New York, the governor gets to appoint the chief judge and the other six judges on the state’s highest court, the Court of Appeals, with the advice and consent of the state Senate. Gov. Kathy Hochul has until April 23 to make a new selection.

After Chief Judge Janet DiFiore resigned, Hochul originally chose Hector LaSalle as her choice for chief judge in December from a list of names of qualified candidates put forth by the Judicial Nomination Commission.

But she failed to win the support of Democrats who lead the Senate. They believed that LaSalle was too conservative to head the court. He was voted down by the Senate Judiciary Committee.

After a weeks-long standoff, minority party Republicans filed a lawsuit to try to force a full Senate vote. Two days before a judge was to hear the case, Democrats held a vote on the Senate floor, and LaSalle was once again rejected.

The process started over with a new list of names. They include three judges who are already on the Court of Appeals: Shirley Troutman and Rowan Wilson, who are both African American, and Anthony Cannataro, who is the acting chief judge.

If Hochul chooses one of them, then she would also need to pick a new associate judge. The governor has not yet announced her choice, but she has signaled that she may pick one of the three.

The Legislature, at Hochul’s request, in late March approved special legislation that would allow her to choose two judges from the new list of names. That would avoid having to go back to the Nominating Commission for a third time, a process that could take several more months and leave the court with just six judges for as long as a year.

Hochul, in an interview with public radio, did not rule out picking one of the three sitting judges to be chief judge, and another from the same list to be a new associate judge.

“That is certainly one of the options, and a bill just gives us maximum flexibility,” Hochul said on March 30.

Hochul said she still believes LaSalle would have been the right person for the job. She said he was neither conservative nor liberal but rather someone who let the law and legal precedents govern his decisions.

She said she will seek the same qualities in her next choice.

“I want someone who looks at each case that comes before them without a political leaning, where you can’t say, ‘This person is left, or this person is right.’ That is not how we lift up jurisprudence in the state of New York,” said Hochul, who added she wants someone who is fair and open-minded and has experience on the bench.

“I've not wavered from the objectives that I had before,” she said. “Those are still my objectives today.”

Even before Hochul has named her choice, there are already some wrinkles emerging.

Senate Republicans are once again threatening to go to court, saying that the state’s constitution does not allow for two nominees for the Court of Appeals to be chosen from just one list. Senate GOP Leader Robert Ortt said the commission needs to come up with a separate set of names for each opening on the court.

“The law … I do believe, in talking to some attorneys, is unconstitutional,” said Ortt, who added there are other groups who might also be considering a lawsuit.

Government reform groups who backed the creation of the judicial nomination commission in the 1970s have also said they think the new law is unconstitutional.

The process to choose a new chief judge was already facing delays. Hochul has said that she does not expect to name her new choices until after the state budget is finished, and the spending plan is already going to be at least 10 days late.

Under the rules, Hochul has from April 8-23 to name her choice.

Karen DeWitt is Capitol Bureau chief for the New York Public News Network, composed of a dozen newsrooms across the state. She has covered state government and politics for the network since 1990.