Albany must keep politics out of the courthouse

Gov. Hochul’s selection of Justice Hector LaSalle to be the next chief judge of the Court of Appeals has devolved into a controversy that threatens irreparable harm to New York’s merit-based system of selecting judges to that court. LaSalle currently serves as an appellate court justice and has participated in more than 5,000 rulings. The controversy has focused mostly on just three of those decisions, and the extent to which they may (or may not) provide insight into his views on specific issues.

We write not to enter that debate, but instead to raise a much more important concern: We may be witnessing the end of the merit selection of judges to New York’s highest court.

Some historical background is important. From its founding until 1978, Court of Appeals judges were elected a process that, not surprisingly, became increasingly politicized over time. As this occurred, the threat to the judiciary grew, with individuals expressly found to be “not qualified” running campaigns — and sometimes winning.

This led to efforts to change the system, culminating in a constitutional amendment creating a system of selecting Court of Appeals judges based on merit.

In particular, there is now an independent Commission on Judicial Nomination, which consists of no more than six Republicans and six Democrats, which screens individuals and recommends seven “well qualified” candidates to the governor. A vote of at least eight commissioners is required for an applicant to be on the list.

Those safeguards — an independent commission, requiring that all candidates be well qualified, an eight-vote supermajority to ensure bipartisan support, requiring the governor to choose one of the seven candidates, and the imposition of strict timeframes — all were intended to “de-politicize” the process.

This merit selection process worked exceedingly well. A total of 35 appointments have been made since 1978, and all have been confirmed by the Senate, with only two generating any meaningful opposition.

Those two situations — Carmen Ciparick in 1993 and Jenny Rivera in 2013, both Latinas — are informative. In particular, Senate Republicans voiced opposition to Ciparick’s purported judicial activism and Rivera’s lack of courtroom experience, but they nonetheless were confirmed.

What is different now, that potentially creates an existential crisis for the merit selection of judges? Four factors.

First, some of LaSalle’s opponents assert that his appointment should be blocked by the Senate Judiciary Committee and not presented to the full Senate for a vote, which has never happened before, and is contrary to the legal mandate that the Senate “confirm or reject” the appointment.

Second, some opponents have made clear that having a judge they prefer is a quid pro quo for their political support during Hochul’s gubernatorial campaign. One union leader stated: “We got you elected . . . . but you got to show us that you are with us too.”

Third, there have been numerous distortions of LaSalle’s legal rulings, which have been amplified through social media. It certainly is appropriate to consider every candidate’s judicial philosophy, but it must be based on a fair reading of their prior rulings. That has not occurred here.

Finally, LaSalle has been vilified throughout this process, with some senators stating that they will vote against his confirmation even before he has appeared at a hearing. This mistreatment is eerily similar to the abuse that Justice Ketanji Brown Jackson received during her U.S. Supreme Court confirmation process.

We all want the Court of Appeals to be the premier state court in the country, but the quality of the judges depends on the quality of the applicants. Next time a vacancy arises, even the most qualified individuals will think twice before applying, fearing vilification for some past position that does not meet the litmus test of influential special interest groups.

Why does merit selection matter? Because ensuring that everyone is treated equally under the law is a bedrock principle of our judicial system. A merit-based process helps to achieve that, while a politized process where candidates are demonized diminishes the public’s trust in the fairness of the entire system.

We can do better.

LaSalle has been selected from a small group of candidates deemed to be well qualified by an independent commission, and he deserves to be treated with respect. The Senate has an important, constitutionally-mandated role to play, which includes both a hearing (scheduled for tomorrow) where LaSalle can be questioned and state his views, and a floor vote on his confirmation.

We need to dial down the rhetoric, put the politics aside, and let this selection be judged on merit alone.

Paterson is a former governor of New York and previously served for more than 20 years in the state Senate. Nocenti served as counsel to three New York governors and participated in multiple judicial appointment processes.