A real judicial review

With dysfunction in Washington on full display, New York’s Senate could show what smart governance looks like with a thorough review of the governor’s chief judge nominee.

As Democrats who control state government argue over the next chief judge of the Court of Appeals, we offer what might seem a bizarre word of advice: Take a lesson from Congress.

From the battle over the next speaker of the House of Representatives to the charade that U.S. Senate confirmation of Supreme Court justices has often become, Congress offers some master-class lessons in how not to govern, which can point the way toward how to get governing right. The state Senate has a big item on its to-do list: Consider Gov. Kathy Hochul’s nomination of state Supreme Court Presiding Justice Hector D. LaSalle as chief judge of the Court of Appeals. The Democratic governor’s nominee has gotten push-back from her own party’s more progressive wing, which views the vacancy as an opportunity to shift the court’s leadership and balance to the left. Under retired Chief Judge Janet DiFiore and other appointees of former Gov. Andrew M. Cuomo, the court has been viewed as less concerned with the rights of defendants, a trend reflected in a reduced caseload, including half as many criminal ap peals as it heard under her predecessor, Jonathan Lippman.

We were among those who called for Ms. Hochul to nominate a judge with a record that showed a commitment to upholding people’s rights. That is not to advocate for a staunchly ideological jurist, but rather for one with a broader view of what justice is about rather than a conservative law-and-order, tough-on-crime mindset. Whether Justice LaSalle fits that bill, the jury is still out. His critics complain that he would be yet another former prosecutor on the bench, and that his record is too conservative. His supporters say his detractors are cherry-picking cases and failing to look at the body of his decisions and experience.

This is where a meaningful confirmation process in the Senate could be of enormous value. We don’t mean a process like the one for confirming U.S. Supreme Court justices in the U.S. Senate, where nominees have often hidden their views and intentions behind a veneer of judicial objectivity, refusing to discuss major legal issues in any kind of substantive way so as not to appear to prejudge cases that might come before them. Cow flap. We all saw how disingenuous such feigned purism was with the rapid overturning of Roe v. Wade once a conservative majority was solidly in place on the high court. The state Senate has an opportunity to do the kind of due diligence that citizens expect from their elected representatives — and to insist that the nominee speak candidly and in depth on legal matters and his record. It has an opportunity, too, to put aside, for the moment at least, knee-jerk ideological positions and engage in an honest, open, and thorough vetting of Justice LaSalle. That’s how senators can get to a truly informed decision, and how New Yorkers can have confidence that, at least here in Albany, thoughtful governance is still a possibility.