For judicial vacancies, ‘Senate means Senate’ — or does it?
“The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals.”
▶ Patrick Brown retired from the firm of Brown & Weinraub at the end of 2022.
Gov. Kathy Hochul, former Chief Judge Jonathan Lippman and others have insisted that under the terms of Article VI, Section 2 (e) of the New York constitution, above, Justice Hector Lasalle — rejected in committee as a nominee for chief judge on the New York Court of Appeals — is entitled to a vote of the full Senate. They argue that no mere Senate rule can supersede this constitutional command.
I am not a former judge or constitutional scholar, but I did practice law for almost 40 years. In my day, if we wanted to interpret a provision of the U.S. or state constitution, we would certainly start with the text, but we wouldn’t stop there. We would ask: What did the drafters mean by certain words and phrases, and how have those words and phrases been interpreted over the years?
Let’s start here: Lasalle’s boosters conveniently ignore another provision of the constitution, Article III, Section 9, which states: “Each house shall determine the rules of its own proceedings.” This suggests it isn’t constitution versus rule, as the literalists would have it, but two constitutional provisions seemingly in conflict.
But are they really? If one applies the basic canon of statutory construction that words and phrases in a single document must be interpreted in such a way as to give meaning to each, couldn’t the two provisions at issue be read to say the Senate must act on the governor’s chief judge nominee according to the procedures determined by the Senate?
Indeed, isn’t that the basic structure of the constitution? The Legislature is commanded to do certain tasks, and it is empowered to decide how it will accomplish those tasks. When the framers have wanted to limit the Legislature’s ability
This means that the non-trump GOP can expect to spend the looming presidential race facing similar attacks from the Biden White House and the Trump campaign. Making the similarity too obvious could backfire on Trump. But the peril for the GOP is that even if Trump can’t beat Desantis by harping on his past positions, he will still be reinforcing for swing voters the liberal narrative that (non-trump) Republicans care only about the rich.
In one sense that narrative shouldn’t be too hard for Desantis to counteract, since his record as governor of Florida is more moderate than libertarian — with increases in teacher pay, support for environmental protection and so on — and it’s not clear that voters care that much about long-ago votes if they aren’t tied to specific policy proposals now.
But the question is what exactly Desantis’ more of-the-moment policy proposals would be, in a fiscal landscape constrained by inflation for the first time in decades. There’s certainly a scenario in which he abjures austerity and embraces pro-family and industrialpolicy spending, maybe even finds a few modest tax increases that own the professional-class liberals, and thereby evades the Trump-biden pincer.
But it won’t be easy to pull off. Especially because part of Trump’s strength has always been that he doesn’t need the Republican Party’s donor class in the way that normal
politicians do, while Desantis will need to rally that class if he’s going to dethrone the former president. And the price of their support will be, most likely, something that isn’t particularly popular: not an idea from the fringes such as Fair Tax or a big entitlement overhaul proposal, necessarily, but at the very least a budgeteating tax cut that probably won’t be populist in any way.
Again, 2012 is an interesting precedent. Part of what killed Romney in that general election was that even though he championed Social Security against Perry and declined to embrace any crankish tax proposals, he still ended up saddled with a tax overhaul plan that donors and activists
liked but that was easy for the Democrats to attack.
It’s not hard to imagine a Desantis candidacy that rallies the establishment and defeats Trump only to end up in a similar general-election position. Which suggests one way in which Trump’s populist attacks on other Republicans could actually be helpful to the party’s chances. They’ll leave no doubt, for Desantis or any other figure, about the political weaknesses of traditional right-wing policymaking. And they might force an early adaptation that otherwise could come, like Romney’s attempted pivots in 2012, as too little and too late.